Metal Construction (W.A.) Limited v. Chief Moyo Aboderin

In the High Court of Lagos State of the Federal Republic of Nigeria, the plaintiff, who is now respondent, instituted an action against the appellant, who therein was the defendant, claiming as subsequently amended as follows:

“(i) The sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) being the cumulative amount of rent due on the premises at 13,Burma Road, Apapa, Lagos State for the period of 1st July, 1978 to 30th June, 1983 at the rent of N400,000.00 per annum from 1st July, 1983 until possession is, given up.

Particulars of Rent

Rent 1st July, 1978 – 30th June, 1979 N200,000.00

Rent 1st July, 1979 – 30th June, 1980 N250.000.00

Rent 1st July, 1980 – 30th June, 1981 N300,000.00

Rent 1st July, 1981 – 30th June, 1982 N350,000.00

Rent 1st July, 1982 – 30th June, 1983 N400,000.00

TOTAL                             N1.500,000.00

(ii) Alternatively a like sum for the defendant’s occupation and use of the premises at 13, Burma Road, Apapa, Lagos State for the period of 1st July, 1978 to 30th June, 1983 at the rent of N400,000.00 per annum from 1st July, 1983 up to the time of judgment.”

Pleadings were ordered in the suit and were duly settled” filed and exchanged.

At the subsequent hearing, both parties testified on their own behalf and the plaintiff called witnesses. The brief facts of this case are not in dispute, These are that the

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defendant was the tenant of the plaintiff since the year 1958 in respect of the latter’s premises situate at 13 Burma Road, Apapa, Lagos State. The last rent payable by the defendant to the plaintiff under the tenancy agreement for the period 1974-1978 was N16.800.00 per annum.

In the year, 1978, the plaintiff determined the tenancy at the expiration of the tenancy with effect from the 30th June, 1978. This was as a result of disagreement between the parties over the question of the amount of rent payable by the defendant in respect of the premises. When the defendant failed and/or neglected to vacate the premises, the plaintiff sued him for recovery of possession thereof in suit NG. LD/93 1/78, Exhibit U, He also claimed mesne profits from the 1st July, 1978 until possession was given up. This claim was dismissed on the 20th February, 1980 on the ground that the defendant, as a yearly tenant, was entitled to six months notice to quit, This length of notice the court found was not given to the defendant. The defendant had paid Its rent up to the 30th June, 1978 at the agreed rent of N 16,000.00 per annum.

Following the dismissal of the said suit, Exhibit U,6 months notice to quit, Exhibit N, and notice of intention to recover possession of the premises, Exhibit O, were served by the plaintiff on the defendant, Thereafter, the present action was commenced by the plaintiff, claiming as already set out above.

At the conclusion of hearing, the learned trial Judge, Adeniji, J. on the 13th February, 1986 dismissed the plaintiffs claim, holding, in effect, that there was no consensus ad idem between the parties on the Issue of

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the new rent claimed by the plaintiff with effect from the 1st July, 1978. He also dismissed the alternative claim in respect of money due for the use and occupation of the  premises.

Being dissatisfied with the said Judgment, both the plaintiff and the defendant lodged appeals against the same to the Court of Appeal, Lagos Division. In a unanimous decision on the 7th day of March, 1990 the court of appeal allowed the appeal of the plaintiff but dismissed the cross appeal of the defendant. It entered judgment for the plaintiff in the sum of N800,400.00 being arrears of rent up to and including the 30th June, 1983 with mesne profits or compensation for the use and occupation of the premises at the rate ofN400.000,00 per annum from the 1st July, 1981 until the date of judgment or the date on which possession was given up, whichever was earlier.

Aggrieved by this decision of the Court of Appeal the defendant has appealed  to this court.

Pursuant to the rules of this court, the parties through their respective counsel filed and exchanged their written briefs of argument. The defendants, which hereinafter will be referred to as the appellant also filed a reply brief to the respondent’s brief of argument.

The sole issue identified on behalf of the appellant which this court is called upon to determine is as follow:.

“Whether the Court of Appeal was right to base its award of damages for use and occupation for the period commencing the 1st of July, 1981, on the tenancy having been determined on the 30th of June, 1981.”

The plaintiff, who hereinafter will be referred to as the

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respondent, while adopting the Issue for determination as formulated by the appellant added what he described as a “corollary Issue” which runs thus:-

“Whether the award of damages made by the Court of Appeal can be filled within the scope of the plaintiff/respondent’s claim as pleaded in the further amended statement of claim.”

I have closely examined the two issues set out by learned counsel for the respondent and they seem to me to Involve the same principles of law. I will accordingly adopt them for my consideration of this appeal. I propose, however, to consider both issues together as they revolve around the same orbit. At the oral hearing of the appeal, both learned counsel for the parties adopted their written briefs of argument and proffered additional submissions in elaboration thereof.

The main contention of learned counsel for the appellant Ifeanyi Nweze Esq., was that no where in the further amended Statement of Claim did the respondent plead the determination of the tenancy with effect from the 30th June, 1981. He submitted that the respondent’s case, both in his pleadings and in both courts below, was that the determination of the tenancy was by effluxion of time with effect from the 30th June, 1978. He conceded that the Court of Appeal was right when it held that the appellant did not challenge Exhibits N and O. He, however argued relying on the decision of this court in Emegokwue v. Okadigbo (1973) 4 SC 113, that both notices went to no issue as they were not pleaded by the respondent. Learned counsel contended that the court below was in error by basing its award for use and

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occupation of the premises on the inadmissible evidence of the determination of the tenancy in 1981. By so doing he claimed that the court  below thereby formulated a new case for the respondent. He stressed that the annual rent payable by the appellant in respect of the premises as at 1978 when the tenancy expired but was further purportedly determined by the notice to quit, Exhibit K, was N16,800,00. He reminded the court that Exhibit K was declared invalid by the Judgment, Exhibit U, He therefore argued that since the tenancy continued to subsist thereafter the rent payable remained at N16,800.00. He therefore submitted that any award to the respondent for use and occupation must in the circumstances, remain the sum of N16,800.00 per annum being the last agreed rent payable by the appellant in respect of the premises.

Learned counsel for the respondents O.S. Sowemimo Esq., in his reply, submitted that the Court of Appeal having regard to the scope of the further amended statement of claim, was fully justified in computing the award of compensation for the use and occupation of the premises from the 1st July. 1981. He conceded that the appellant’s tenancy expired on the 30th June. 1978 by effluxion of time and was not renewed thereafter. But he referred, in particular, to paragraph 10 of the further amended Statement of Claim where “several quit notices” served on the appellant by the respondent since 1978 were expressly pleaded. These were Exhibit N, dated the 29th December, 1980 and Exhibit 0, dated the 14th June, 1981 respectively. He made reference to the decision in Re Vandervell’s Trust (No.2) (1974) 1 CH 269 and

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contended that the further amended statement of claim contained all the material facts which were duly testified to by the respondent. He submitted that those material facts were sufficient to sustain the decision of the court below. Learned counsel argued that what the Court of Appeal did was not to set up any new case for the respondent different from that he pleaded but to award to him less than the amount of compensation he had claimed.

Relying on the decision in Pan Asian v. NICON (1982) 9 SC 1, he submitted that there was no doubt that the appellant held over the premises at the expiration of its tenancy. He contended that what had generated argument was the issue of when this holding over commenced to enable the question of compensation or damages for use and occupation of the premises to be computed from that date. He claimed that the respondent led unchallenged viva voce and expert evidence on the issue of reasonable compensation due to him for the use and occupation of the premises by the appellant. He stressed that the validity of the notices, Exhibits N and 0 was at no time challenged by the appellant. The respondent was also not cross-examined on his testimony that the appropriate rent in respect of the premises as at the 1st July, 1978 was N400,000,00 per annum. When however, the attention of learned counsel was drawn to Exhibits T, 0 and R in which the respondent’s expert witness, P.W.2, a Chartered Estate Surveyor and a partner in the firm of Knight Frank and Rutley demanded the annual rent of N300,000,00 in respect of the premises as at the 30th June, 1981, he indicated, quite rightly in my view that he would be prepared to accept the lower figure

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of N300,000.00 contained in those letters as against the N400,000.00 awarded by the Court of Appeal. He urged this court to dismiss the appeal.

Before I proceed to consider the sale issue for determination in this appeal which essentially is whether the Court of Appeal was right in basing its award for use and occupation from the 1st of July, 1981, the tenancy having been determined on the 30th June, 1981, it may be necessary to examine briefly and generally claims for use and occupation of land.

It is trite that one who enters on land by a lawful title, and after his title has ended, continues to retain possession thereof without the consent of his landlord is a tenant at sufferance and may be sued by his former landlord for compensation or damages for use and occupation of such land. As the general basis of the compensation of the kind claimed is the absence of consensus ad-Idem between the parties on the issue of the specific rent payable, the landlord may recover a reasonable satisfaction or compensation’ for the use and occupation of such premises held or occupied by the defendant as his tenant, or by his permission or sufferance. The claim is based on the fact of a holding over by a tenant after the determination of a tenancy, So, in Pan Asian v. NICON (1982) 9 SC 1, this court, Per Obaseki. J.S.C. explained the position as follows:-

“After the service of a written notice or at the end of the term granted and the tenant holds over without the permission of the landlord, the tenant is liable to pay mesne profits for the use and occupation of the premises till he delivers up possession.”

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The compensation is usually recovered as damages for breach of an express or implied agreement to pay for the use of the land or premises, and where the rent has been fixed, this, invariably, is evidence of the’ amount of damages to be recovered. But the landlord is not limited to such fixed rent; he may recover all the loss which had resulted from his dispossession of the land. Accordingly, where the previously fixed rent represents the true and fair value of the premises, mesne profits are assessed at the amount of such rent; but if the real value is higher than such rent, then the mesne profits must be assessed at the higher value. See: Clifton Securities Ltd. v. Huntley (1948) 2 All ER 283 at 284.

In the present case, it, is not in dispute that the appellant was a tenant of the respondent on the premises in issue from as far back as the 1st July, 1958. It Is conceded that the appellant fully paid his rents up to and including the 30th June, 1978. The parties are also in agreement that the appellant held over the premises on the expiration of its tenancy on the said 30th June, 1978. There was no agreement between them as to the-precise amount of rent that was payable by the appellant in respect of the premises with effect from the said 1st July, 1978.

There can be no doubt that this is a proper case in which the respondent was entitled to bring the present action against the appellant for compensation and/or damages for use and occupation of the premises in issue for the period it was held over by the appellant.’ The next question must now be whether as contended by the  learned counsel for the appellant, the respondent’s case was not that the tenancy was determined on the

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30th June, 1981 and whether the respondent’s evidence of the determination of the tenancy on the 30th June, 1981 was inadmissible.

In this regard, the Court of Appeal stated as follow:

“The defendants are therefore correct in their contention that as long as the tenancy still subsisted, so too the rent of N16,000.00 per annum, until varied by consent. The question then is whether or not the tenancy still subsisted as of 1982 when the present suit was commenced? Chief Sowemimo, SAN, referred to Exhibit J and the defendant’s Exhibit F at page 127 to support the termination of the tenancy, but this cannot be correct. In fact, both Exhibits led to Exhibit U, In which the learned Judge held that the proper notice of termination had not been given. It does appear, however, that following Exhibit U, the plaintiff served the necessary notices in termination of the tenancy. They are Exhibits 0 (page 142) and N (page 143). BY Exhibit N the tenancy was determined with effect from 1st July. 1981. The defendants have not challenged Exhibits 0 and N as improper. It was after both exhibits that the plaintiff commenced the present action. In my view, therefore, the defendants can only be heard to say that their rent up to 30th June, 1981 (when Exhibit N was Issued) was N16,800.00. After that date, the defendants stayed over.”

It cannot be disputed that either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He

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may also rely on several different rights alternatively, although they be inconsistent. See: Philipps v. Philipps (1878) 4 QBD 127 at 134. However, where alternative claims are alleged, the facts relating to such claims ought not be mixed up so as to show on what facts each alternative head of relief is claimed. See Davy v. Garrett (1877-1878) 7 ChD. 473. In the same vein, a defendant may raise in his statement of defence as many distinct and separate, and therefore inconsistent defences as he may think proper. See: Berdan v. Greenwood (1877-80) 3 Ex D. 251 at 252;Coote v. Ford (1899) 2 Ch. 93 etc.

A close examination of the respondent’s claims reveals that they are couched in the alternative. The first arm of the reliefs is a claim in rent whilst the second arm is based on compensation for use and occupation of the premises in issue. Both arms of the claim are for the Period 1st July, 1978 10 30th June, 1983.

A claim for rent is clearly different from a claim in respect of use and occupation. The material facts in support of the said alternative heads of claims were clearly pleaded in the further amended statement of claim. The claims were therefore properly made by the respondent.

There can be no doubt that the respondent pleaded the expiration of the tenancy in issue by effluxion of time on 30th June, 1978. But it is equally correct that in paragraph 10 of the same further amended statement of claim, he averred as follows -“The plaintiff avers that since July, 1978 the defendants have refused to vacate the demised premises and are still occupying the same despite several quit notices served on them. The plaintiff will found on the said quit notices at the trial.”

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Pursuant to the said averment, the respondent testified at the trial and tendered the notice to quit. Exhibit N and the seven days notice of intention to recover possession, Exhibit O. It is clear that by Exhibit N, the respondent further determined the tenancy in issue with effect from the 30th June, 198I. In my view, paragraph 10 of the further amended Statement of claim pleaded service of various  other notices to quit on the appellant by the respondent apart from the earlier determination of the tenancy with effect from the 30th June, 1978 by effluxion of time.

-Averment of the notice to quit, Exhibit N, clearly tantamounted to an averment of the determination of the tenancy with effect from the 30th June, 1981 as evidenced by the said Exhibit N. It cannot therefore be correct, as contended by learned counsel for the appellant that the respondent failed to aver in his pleadings the determination of the tenancy by notice to quit In 1981. Material facts in respect of the claim were fully averred in the respondent’s further amended statement of claim. That was all the law required him to do. He needed not state any legal results flowing from the facts pleaded. He was fully entitled, as happened in the present case, to present, in argument, any legal consequence of which the facts pleaded permitted.

In this connection, it is pertinent to make reference to the observation of Lord Denning M.R. in Re Vandervell’s Trust (No. 2)(1974) 1 CH 269 at 321 where the learned Lord said as follows:-

“Mr. Balcombe for the executors stressed that the points taken by Mr. Mills were not covered by the pleadings. He said time and time again.

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“This way of putting the case was not pleaded” No such trust was pleaded”. And so forth, the more he argued, the more technical he became, I began to think we were back in the bad old days before the Common Law Procedure Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the omission  of a single averment: See Bullen and Leake’s Precedents of Pleadings 3rd Edition (1868) P. 147. All that has been long swept away. It is sufficient for the pleader to state the material facts. He needs not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit. The  pleadings in this case contained all the material facts.”

See too Peenok Investments Ltd. v. Hotel Presidential (1982) 12SC 1 at 57. I am, with respect, in total agreement with the above exposition of the law by the noble Lord and fully endorse the same.

It is plain to me that what the respondent was claiming, in his further amended statement of claim was payment of N1,500,000.00 by the appellant being rent due on the premises in issue or, alternatively for use and occupation of the premises; both claims covering the period 1st July, 1978 to 30th June. 1983 at the rate therein particularised and thereafter from 1st July, 1983 until possession is given up or until the date of Judgment, at the rate of N400.000.00 per annum. The court of appeal entered judgment in favour of the respondent in his claim for use and occupation of the premises by the appellant at the

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rate of N 16,800.00 per annum from the 1st July, 1978 to the 30th June. 1981 and at the rate of N400,000.00 from the 1st July, 1981 until the 30th June. 1983. The court below, in the face of the uncontradicted viva voce evidence before the trial court, enhanced the annual value of the premises to N400.000,00 per annum with effect from the 1st July, 1981, a day after the determination of the tenancy on the 30th June, 1981 by Exhibits N and O. The real question is whether the Court of Appeal was right to base its award with effect from the 1st day of July. 1981 when, as contended by the appellant, the determination of the tenancy with effect from the 30th June, 1981 was not pleaded by the respondent. It is clear to me that the determination of the tenancy with effect from the 30th June, 1981 as found by the court below was not only pleaded but is fully supported by the evidence before the trial court. In my view, the court below was right to base its award in respect of the appellant’s use and occupation of the premises from the 1st July, 1981.

Another angle of viewing the decision of the Court of Appeal is from the fact that although on the evidence and the pleadings of the respondent, the tenancy was determined by effluxion of time on the 30th June, 1978, there was no reliable evidence of the true annual value of the premises for the period 1st July, 1978 to the 30th June, 1981. No doubt, there was the viva voce evidence of the respondent who claimed N400,000.00 as the annual rental value of the premises from the year 1981. This annual rental value however rested entirely on the ipse dixit of the respondent and was without any satisfactory proof. It was this value that the court of

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appeal, with respect, erroneously based its award on.

As against that value is the expert report of P.W.2. Exhibit T, which showed that the reasonable rental value of the premises as at the 1st July, 1981 was N300,000.00 per annum. Learned counsel for the respondent has indicated and, quite rightly in my view, that he was prepared to accept this annual value of N300,000.00 as against the N400.000.00 awarded by the Court of Appeal. I think an award based on the figure of N300.000.00 will meet the Justice of this case on the question of the respondent’s entitlement to the use and occupation of his premises by the appellant from the 1st July. 1981 to the 30th July, 1983.

It was further argued on behalf of the appellant that the court below in basing its judgment in respect of the respondent’s claim for use and occupation on the evidence of a determination of the tenancy in 1981 formulated a new case for the said respondent.

I cannot, with respect, accept this submission as well founded. In my view what the Court of Appeal did was not to set up a new case for the respondent but merely to enter Judgment for the respondent for less than what he had claimed. Rather than compute the damages for use and occupation from 1978, it conservatively adjudged the appellant liable from the 1st July, 1981. And it is trite law that a court of law may enter judgment for less and never for more than a plaintiff has claimed. See Ekpenyong & Ors v. Nyong & Ors. (1975) 2 SC 71 at 81-82; Union Beverages v. Owolabi (1988) 2 NWLR (Pt.68) 128 at 133; Olurotimi  v. lge (1993) 8 NWLR (Pt.311) 257 at 271 etc.

The conclusion I therefore reach in this appeal is that the

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question posed by the two issues under consideration must be answered in the affirmative. There will therefore be judgment for the respondent against the appellant in the sum of N650,400.00 being damages and/or compensation payable by the appellant to the respondent for the use and occupation of the respondent’s premises situate at No. 13, Bunna Road, Apapa, Lagos by the said appellant for the period 1st July, 1978 to the 30th June, 1983 at the under- mentioned annual value, namely:-

(i)   1st July 1978 – 30th June, 1979            N16,800.00

(ii)  1st July 1979 – 30th June, 1980            N16,800.00

(iii) 1st July 1980 – 30th June, 1981            N16,800.00

(iv) 1st July 1981 – 30th June, 1982          N300,000.00

(v)  1st July 1982 – 30th June, 1983         N300.000.00

TOTAL                                  N650,400.00

and thereafter at the rate of N300.000.00 per annum from the 1st day of July, 1983 until the date of this judgment or the date on which possession was given up, whichever is earlier in point in time.

The appeal is otherwise without merit and the same is hereby dismissed with costs to the respondent against the appellant which I asses and fix at N10,000.00.