Alhaja Sabalemotu Ayinke v. Alhaji Muniru Lawal & Ors

 I had the privilege of reading in advance the judgment of my learned brother, Iguh, J.S.C. and I am in full agreement with his reasoning and conclusions. I adopt them as mine in restoring the decision of trial Chief Magistrate and setting aside the judgment of Court of Appeal. I make the same consequential orders as to costs.

I had been privileged to read in advanced the lead judgment just delivered by my learned brother, Iguh, J.S.C. and I am in total agreement with his

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reasoning and conclusions, which reasoning and conclusions I adopt as mine.

Accordingly, this appeal succeeds and it is hereby allowed. I also abide by the consequential orders contained in the lead judgment, including those of costs as awarded to the Cross-Appellant both in this Court and in the Court of Appeal.

I have had the advantage of a preview of the judgment of my learned brother, Iguh, J.S.C. just delivered. I agree with his conclusion that this appeal be allowed.

By writ of summons issued in the Magistrate Court of Lagos State in Suit No. 850/82, the Plaintiff who is now the Appellant before us sued Alhaji Bashiru Adetunji Lawal claiming as hereunder:

1. The plaintiff is entitled to the possession of the premises, one storey building (consisting of 10 shops and 5 room-offices) situate at No.1 Aro Street (otherwise referred to as No. 88B Docemo Street) Lagos which were let by the plaintiff to the Defendant under a Lease Agreement dated the 1st day of July 1972 for a period of six years under the rent of N2.00 per annum, which said agreement was determined by efflux ion of time on the 15th day of July 1978 and on the 25th day of March 1982 the plaintiff by her solicitor did serve on the Defendant a notice in writing of her intention to apply to recover possession of the said storey building (a duplicate of which notice is hereto annexed) by serving him

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personally, and that notwithstanding the said notice, the Defendant refused or neglected to deliver up possession of the said premises and still detains the same. The plaintiff claims possession and N1,000.00 per annum for use and occupation from the 15th July 1978 until possession is given up.

The case went on trial before Alhaji J .A. Oshodi Chief Magistrate Grade I who after taking evidence and addresses of learned counsel for the parties found in favour of the plaintiff and entered judgment in her favour in the following terms:

It is hereby adjudged that the plaintiff do recover from the defendant possession of the premises mentioned in the particulars of claim annexed to the summons in this action, that is to say that one storey building constituting of 10 shops and 5 rooms offices at No. 1 Aro Street; also known as 88B Docemo Street, Lagos. It is further adjudged that the plaintiff recover from the defendant jointly and severally the sum of N4,000 for use and occupation of the said premises from period 15/7/78 to date. It is ordered that the defendants having over stayed for four years should give to the plaintiff immediate possession of the said premises.
The defendant will pay to the plaintiff costs of this action which is assessed at N200.

Being dissatisfied with this judgment the defendant appealed to the high Court. During the pendency of the appeal in the High Court, the defendant died and was substituted by Alhaji Muniru Lawal, Alhaja Aderonke

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Lawal, Alhaja Monsurat Lawal and Alhaji Rasheed Lawal, the legal personal representatives of the deceased Bashiru Adetunji Lawal and the caption of the case was accordingly amended. The appeal was heard by Hon. C.A. Johnson CJ who in a judgment delivered on the 2nd of April 1986 allowed the appeal, set aside the judgment of the trial Chief Magistrate and dismissed plaintiffs case. The plaintiff being dissatisfied with the judgment of the High Court appealed, with leave, to the Court of Appeal. That Court (Ademola, Kolawale JJ.C.A.; Kutigi J.C.A. (as he then was)) allowed the appeal of the plaintiff and adjudged as follows:

The Appeal therefore Succeeds and it is hereby allowed. The judgment of the Chief Magistrate Grade I delivered on 23/6/82 is hereby confirmed except as to the amount of N4,000.00 awarded as mesne profit for use and occupation of the premises. The respondent should give up possession of the premises claimed to the appellant forthwith. The award of mesne profit is reduced as stated above.

I award costs of two hundred (N200) Naira in favour of the appellant.
In the lead judgment of the court with which the other Justices agreed, Kutigi J.C.A. (as he then was) observed as follows:

I think the learned trial Chief Magistrate did rightly in my view find that there was a lease agreement between the parties herein for a period of six years. He also rightly found that the lease expired on 14/7/78 and that, that

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respondent was holding over for a period of approximately four years when he finally delivered his judgment on 23/6/82. After the service of the written notice to quit or at the end of the term granted, if the tenant holds over without the permission of the landlord, the tenant is liable to pay mesne profit for the use and occupation of the premises till he delivers up possession (See Pan Asian African Limited v. N.I.C.O.N (1982) 9 S.C. 48. I agree with Mr. Saru for the respondent that in these circumstances the appellant would not be entitled to mesne profit higher than the N2.00 (two Naira) per annum fixed as rent under the original agreement. (See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt.55) 126. If there is need to vary the amount a proper application has to be made to appropriate authority or tribunal. The Chief Magistrate was clearly in error when he awarded N4,000.00(i.e. N1,000.00 per annum) to the appellant for use and occupation of the premises. The award will have to be reduced and it is hereby reduced to N18.00 (Eighten Naira) i.e. from July 1918 to date at the rate of N2.00 per annum as fixed by the Agreement (Exh. A)
(Italics mine)

The plaintiff has again with leave of Court appealed to this Court against that part of the judgment of the Court of Appeal reducing the award of damages given by the trial Chief Magistrate in her favour from N4,000.00 to N18.00. The defendants also appealed against the whole judgment. They however, did not pursue their own appeal in this Court and this was subsequently struck out. This judgment is concerned with the plaintiffs appeal.

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The plaintiff relies on two grounds of appeal to wit:

1. The learned Justices of the Court of appeal erred and misdirected themselves in law when they held that the cross-appellant would not be entitled to mesne profits at a rate higher than the N2.00 per annum fixed as rent under the tenancy agreement and in reducing the rate of mesne profits found and awarded by the Chief Magistrates Court against the cross-respondents from N1,000.00 per annum to N2.00 per annum.

Particulars of Errors

(a) Mesne profits are calculated on the fair or annual value of the premises and mayor may not be the same as the annual rent payable during the tenancy and as such its claim and award may go higher or lower than the rent stated in the tenancy agreement.

(b) Since mesne profit is unliquidated and it is based on the open market or current annual value of the premises it is at large and its assessment differs from the rate of the rent in the tenancy agreement.

(c) It is enough basis for the award of mesne profits if the claimant addresses satisfactory credible evidence in proof of its rate even if the evidence is the claimants mere ipse dixit.

(d) The cross-appellants ipse dixit that the mesne profit was N1,000.00 per annum was not challenged or contradicted in any way by the cross-respondents and the

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cross respondents did not prove that the annual value of the premises was N2.00.

2. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts in relying on Oduye v. Nigeria Airways Limited (supra) to hold and in holding that if there is need to vary the amount of N2.00 stated in the tenancy agreement, a proper application has to be made to the appropriate authority or tribunal.

Particulars of Errors

(a) The case of Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt. 55) 126 relied on by the Court of Appeal is distinguishable from the present case.

(b) At the time of the institution of this case in the trial court, only Magistrates and High Courts had jurisdiction to entertain possession cases.

(c) The issue of variation of the amount of N2.00 stated in the tenancy agreement was neither raised nor canvassed by any of the parties before the Court of Appeal.

(d) The cross-appellant claimed N1,000.00 per annum as mesne profits and not as arrears of rents.

In this court she filed a brief wherein she set out the following issue as arising for determination to wit:

Whether or not a landlord can compute, claim from a tenant holding over, and should be awarded, mesne

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profits at a rate higher than the annual rent reserved in the tenancy agreement between him and his tenant?
The defendants who are now respondents in this Court did not file any brief nor did they appear throughout in the proceedings in this court. The main argument in support of the appeal is that the court below was wrong to use the rent reserved in the lease agreement as a yardstick for determining the damages plaintiff was entitled to. It is the contention of the plaintiff that mesne profits are generally calculated on the yearly value of the premises and that the landlord is not bound to use the rent reserved in the lease agreement and payable during the tenancy as the index of the rate of mesne profit. Reliance is placed on Debs v. Cenico Nigeria Limited (1986) 3 NWLR (Pt. 32) 846 and Marine and General Assurance Co. Limited v. Rossek and Another (1986) 2 NWLR (Pt. 25) 750 at p. 763. It is further contended that Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt. 25) 126 on which the Court based its decision is inapplicable to the facts of the case here.

Finally it is contended that on the evidence available at the trial, the trial Chief Magistrate was right in entering judgment for the plaintiff in the sum of N4,000.00 I like to begin by pointing out that the claim of the plaintiff in the trial court was not for mesne profits for use and occupation of the premises but for damages for use and occupation of the premises. The court below obviously confused the issue by taking the claim as one of mesne profits for use and occupation. This Court has in a recent case pointed out that there is no such thing as mesne

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profits for use and occupation. I refer to African Petroleum Limited v. Owodunni (1991) 8 (Pt. 210) NWLR 391 where this Court pointed out the distinction between mesne profits and damages for use and occupation of land or premises. Nnaemeka-Agu, J.S.C. delivering the lead judgment of this Court in that case had this to say at pages 417 -418 of the report:

In order to be able to decide the second issue, it is necessary to consider the following namely:

(i) Would the plaintiff been titled to mesne profit or to damages for use and occupation of the premises? Or are the two expressions interchangeable?
(ii) When could the claim for mesne profits or for damages for use and occupation properly begin to run?
(iii) What is the right measure?

Now according to Whartons Law Lexicon (14th Edn. at p. 652:-

Mesne profits 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. A claim for rent is therefore liquidated, while a claim for mesne profit is always unliquidated.
X X X X X X X X
The jury are not bound by the amount of the rent, but may give extra damages. It follows therefore that a claim for mesne profits is inappropriate when the occupier is still a

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tenant. It can only be maintained when his tenancy has been duly determined and he becomes a trespasser.

In this respect, a statutory tenant such as the defendant, though merely a protected tenant cannot properly be adjudged to be liable for mesne profit unless and until his tenancy has been duly determined according to law.

On the other hand, where a tenant who entered upon a premises lawfully occupies the land or premises of another without an agreement with consent by the true owner, what he has to pay is not rent, because as there is no longer a demise, he no longer has an estate, he will not pay mesne profit because he is not a trespasser.

Rather, he will be liable for damages for his use and occupation of the land or premises. The action arises out of an implied agreement to payout of what may be called a quasi – tenancy rather than a relationship between a landlord and tenant (See Woodfall: On Landlord: On Landlord and Tenant (21st Ed.) p. 666.) See also Rochester (Dean and Chapter v. Pierce) (1808) 1 Cap 466.
So, the defendant would be liable for damages for use and occupation. He could not be liable for mesne profits because the element of wrongful and tortious occupation was absent. In the circumstances, for the Court of appeal to have made an award as mesne profits for use and occupation was an error. But it did not lead to a miscarriage of justice.

Another area of difference between mesne profits and

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damages for use and occupation is the date of commencement. Mesne profits start to run from the date of service of the process for determining the tenancy (See Canas property Co. Limited v. KL Television Services Limited (1970) 2 Q.B. 433).
But damages for use and occupation start to run from the date of holding over the property, the function of the court being to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant.

The previous rent may sometimes be a guide, but may not be conclusive.
Karibi-Whyte, J.S.C. in his own contribution observed at page 420:
“Mesne Profits are the rents profits which a trespasser has, or might have received or made during the occupation of the premises and which therefore he must pay over to the true owner as compensation for the tort which he has committed. A claim for rent is therefore liquidated, while a claim for mesne profit is always unliquidated. See Whartons Law Lexicon (14th Ed.) 652” See also Debs v. Cernico Limited (1986) 3 NWLR (Pt. 32) 846 at p.851; Nigerian Construction and Holding Co. Limited v. Owoyele (1988) 4 NWLR (Pt. 90) 588.

Because a claim for mesne profits is based on trespass and 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

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trespasser. In the circumstances of this case where a tenancy is created by operation of law, the status of trespasser will not arise, until the tenancy is duly determined according to law – See Omotesho v. Oloriegbe (1988) 4 NWLR (Pt. 87) 225.
However, the lawful use and occupation of the land and premises, implies an agreement to pay damages for such use and occupation of the land and premises. It is a quasi-tenancy which the law recognises. It is not based on the accepted landlord and tenant relationship.

In the instant case, absent the element of wrongful and tortuous occupation, defendant is clearly not liable for mesne profits. He undoubtedly will be and is liable for use and occupation; The use of the expression mesne profits to describe the damages for use and occupation is a misnomer; and an error, which did not lead to a miscarriage of justice.

On the facts as disclosed on the evidence the plaintiff was right to have claimed for damages for use and occupation and the court below, with due respect, was wrong to have referred to her claim as one for mesne profits for use and occupation.

This error however, does not occasion any miscarriage of justice.
With this conclusion I come to the main issue raised in this appeal and that is, whether rent reserved in a lease agreement is to be a determinant factor in computing the damages for use and occupation and indeed for mesne

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profits. In the case of African Petroleum Limited v. Owodunni (supra), Karibi-Whyte J.S.C. set out the criteria for determining mesne profits and damages for use and occupation.

He said-
In calculating the damages for use and occupation, the period is reckoned from the date of the holding over of the property. The duty of the Court is to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. The previous rent is merely a guide but is not necessarily conclusive. Where standard rent has been fixed, for a period, for two years, as in the instant case, such rent will be conclusive. After such period rent commensurate with similar premises in the same location will be a guide.

This is also the yardstick applied by Nnaemeka-Agu J.S.C in his judgment in the case. It follows therefore, that the Court of Appeal was clearly in error in using the rent as the index for determining the award to be made to the Plaintiff. There is abundant evidence on record to justify the award made by the learned trial Chief Magistrate. Plaintiff gave evidence in support of her claim for N1,000.00 per annum. The original defendant in his own evidence, testified thus:

Alhaji Adegbesan pays N40.00 per month. Giba pays, I do not remember how much I collect wrongly (sic) between

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N3,000.00 to N4,000.00 per annum.
To questions by the court, he answer thus:

I occupy three rooms in the premises I do not pay rents for the rooms I occupy. If I have pay (sic) rents I will pay at least N90.00 per month.
Going by the evidence of the original defendant the damages that the plaintiff would be entitled to would have been well over N4,000.00 per annum but the plaintiff claimed the lesser sum of N 1,000.00 per annum and she would only be entitled to that lesser sum; the court would not grant her more than she claimed.

Certainly to award her N2.00 per annum as decided by the court below on the premise that, that sum represented the rent reserved in the lease agreement between the parties would be to allow the defendant to profit from his wrong doing. That, the law will not allow.

It would appear from the lead judgment of the court below that it was swayed into this error by its reliance on the decision of this Court in Oduye v. Nigeria Airways Limited (supra). I have read in full all the judgments of the Justices of this Court that sat in the Oduye case (supra). That case is clearly not authority for the proposition in the lead judgment of the court below that the appellant would not be entitled to mesne profit higher than the N2.00 (two Naira) per annum fixed as rent under the original agreement.

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It is not the case here that the Rent Control and Recovery of Residential Premises Edict 1976 of Lagos State applied. The Edict had in fact been repealed by Lagos State Law No.5 1981 and the jurisdiction of the tribunal created under the Edict had reverted to the conventional courts when the action in the present matter was filed in May 1982. Indeed what constitutes mesne profit was never decided in Oduye. Had there been a proper appraisal of the facts, and the basis of the decision of this Court in the Oduye case, the court below would have discovered that its facts were different to the facts in the case before it and that the decision therein would not apply to decide the issue of mesne profit here. And there lies the danger in relying on a case without adverting to its facts and the basis for the courts decision in it.

As explained in the lead judgment of my learned brother, the Oduye case concerned residential premises to which the Lagos State Rent Edict No.9 of 1976 applied. The case concerned a landlord (an employer) under the Edict suing in the High Court for mesne profit by way of commercial rent, from his statutory tenant (a former employee). Under the Edict, it was the Rent Tribunal that had power to determine Commercial rent. This Court held that the determination by the High Court was made without jurisdiction and, therefore, a nullity. The landlords claim was struck out as having been brought in a wrong forum. For the reasons I have given above, my conclusion is that the learned trial Chief Magistrate was right in awarding to the plaintiff against the defendants a sum of N4,000.00 for the four years the defendants held over

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until judgment of the trial Chief Magistrate. The court below was wrong in interfering with that award and I have no hesitation whatsoever in allowing this appeal and setting aside the judgment of the court below. I restore the judgment of the learned trial Chief Magistrate and abide by the award of costs made in the lead judgment of my learned brother Iguh, J.S.C.

 I have had the privilege of reading, in draft, the judgment just read by my learned brother, Iguh, J.S.C. and I agree that the appeal succeeds. Accordingly, I allow the appeal and abide by the consequential orders made in the lead judgment, including the order for costs.
Appeal allowed.