ALHAJI OSENI OYEWO
V
Dr. B D. KOMOLAFE
COURTOF APPEAL
(ABUJA DNISION)
UWANI MUSAABBAAJI JCA (Presided)
ABDU ABOKI lCA (Read the Lead Judgment)
AYOBODE OLUJIMI LOKULO-SODIPE JCA

Issues: 1.
Whether the learned trial Judge was right in awarding NI50,000.00 (one hundred and fifty thousand naira) mesne profit per annum, when the respondent had not traversed the claim ofN750,OOO.00 (seven hundred and fifty thousand naira) mesne profit per annum in his own pleadings.

Whether the learned trial Judge was right in fixing the mesne profit at NI50,000.00 (one hundred and fifty thousand naira) per annum on his own, rather than relying on the evidence before him which put the rental value of the premises at betweenN600,OOO (six hundred thousand naira) to N8oo,OOO.00 (eight hundred thousand naira) per annum.

Whether the learned trial Judge was right in dismissing appellant’s claim for cost cf restoring the building to its original design in view of the alteration by the respondent and cost of repair of the premises in view of the uncontroverted evidence of the negligence of the respondent in failing to properly handover the premises to the appellant which led to its vandalisation.

Whether the learned trial Judge was in error in failing to award prejudgment interest on the amount claimed in view of the circumstances of this case. Whether the learned trial Judge exercised his discretion judiciously and judicially when he awarded cost of N I 0,000 (ten thousand naira) out of N 100,000 (one hundred thousand naira) asked for by the appellant in view of the circumstances of this case.

Cross-appeal issues

Whether on the facts and evidence before the trial court, the Judge did not err in his conclusipn that the cross-appellant . ceased to be cross-respondent’s tenant upon the service and  expiration of the purported statutory; notices in the light of events which had overtaken the effect of the notices.

Whether from the pleadings and evidence before the trial court, the statutory notices served by cross- through his respondent agents/solicitors on the cross-appellant are valid in law.

3Whether having regard to the state of pleadings and evidence led before the trial court, the cross-appellant did not discharge the burden of proof to establish his claim of set -off

Facts:

The appellant and respondent entered into a rent agreement. The respondent was to be a yearly tenant and was to utilise his first rent on the completion of the rented building since same had not been fully completed. The appellant however gave a 6 months notice to the respondent to vacate the premises when he breached terms of the agreement entered into by the parties.

A notice of intention to recover possession was given to the respondent after a notice was given to him to vacate the premises had expired and he held over.

The respondent filed a suit at the High Court of the Federal Capital Territory. The appellant entered his defence and filed a counterclaim. The appellant’s claim was struck out and the court granted certain reliefs in the counterclaim.

Dissatisfied, the appellant appealed while the respondent cross-appealed to the Court of Appeal.

HELD: (Allowing the appeal in part and dismissing the cross- appeal

What a traverse is – A traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. In order to raise an issue of fact, there must be a proper traverse. A proper traverse is a complete and sufficient denial which has the effect of joining issues between the parties.

[UBN Pic v. Scpok (Nig.) Ltd (1998) 12 NWLR (Pt. 578) 439; Okoromaka v. Odiri (1995) 7 NWLR (Pt. 408) 411 referred to] [P. 916, paras. A – B]

What constitutes miscarriage of justice – What will constitute a miscarriage of justice may vary, not only in relation to the particular facts but also with regard to the jurisdiction which has been invoked by the proceedings in question and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law. [Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) 16 referred to] [P. 916, paras. F – H]

What mesne profit is and how it is calculated –  The term ‘mesne profit’ is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time the tenant gives up possession. It follows therefore, that mesne profits only start to run when the tenancy expires and the tenant holds over.

Mesne profits are usually calculated on the yearly value of the premises and so a landlord is not bound to use the rent payable during the tenancy as an index of the rate of mesne profits. [Debs v. Cenico (Nig.) Ltd (1986) 3 NWLR (Pt. 32) 846; Osawaru v. Ezeiruka (1978) 6n SC 135 referred to] [P. 924, paras. E – H]

4. On whom onus lies to establish mesne profit –  The onus is on the person alleging to establish what his yearly or rental value of type premises is. [P. 925, para. B]

Per ABOKI lCA: [Po 925, p”ras. B – E]

“In ,the instant case, it is on record that the appellant in his pleadings and evidence before the trial court has put the rental value of the premises at between N600,000.00 (six hundred thousand naira) and N800,000.00 (eight hundred thousand naira) per annum.

It is also on record that the respondent did not challenge this claim of the appellant. I therefore hold that the trial court was not right in fixing the mesne profit at NI50,OOO (one hundred and fifty thousand naira) per annum on its own, rather than relying on the rental value evidenced before it which uncontrovertedly put the value between N600,OOO.OO (six hundred thousand naira) and N800,OOO.OO (eight hundred thousand naira) per annum.

This second issue is also resolved in favour of the ,appellant and invoking the powers of this court under section 16 of the Court of Appeal Act, I hereby award the sum ofN600,OOO (six hundred thousand naira) as

Quantum of proof required commission of crime in civil or criminal trial – If tJ”. commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal it must be proved beyond reasonable doubt.

[Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1, (2005) 7 SCNJ 1; Nwobodo v. Onoh (1984) 1 SCNLR 1, Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, section 138(1) referred to] [P. 930, paras. D – E]

What proof beyond reasonable doubt entails – .

Proof beyond reasonable doubt means proof of an offence with the certainty of the criminal law. That certainty is that the offence has been committed and no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these two facts, the case is said to be proved beyond reasonable doubt. [P. 930, paras. F – G]

Effect of failure to lead evidence to establish claims before a court of law –

Where no evidence is led to establish the claims before a court, such. Claims will be dismissed for want of evidence. [Rimi v. INEC (2004) All FWLR (pt, 210) 1312, (2005) 6 NWLR (Pt. 920) 56 referred to] [P. 931, paras. A -B]

Effect of failure to prove allegation of a wrong –

Where an allegation of a wrong is not proved, there is no wrong. The law is ubi jus ubi remedium which means that where there is a wrong, there is a remedy and conversely, where an allegation of a wrong is not proved, there is no wrong. [P. 933, paras. E – F]

Purpose of awarding costs by the court –  Litigation involves expenses by both parties. These expenses includes amount spent for the”preparation and filing of

Where one is. Engaged. Costs are meant to compensate one of the parties, most often the successful party, for the expense he has incurred in the litigation. The court orders that the other party should pay him a certain sum of money awarded for this purpose.

However, it must be noted that costs rarely indemnifies fully the party in whose favour it is ordered for the entire amount spent by him and it is not awarded to punish the unsuccessful litigant.

The exercise of the power is at the discretion ofthe court. [Inneh v. Obaraye (1957) 2 FSC 58; Afribank (Nig.) Plc v. Geneva (1999) 12 NWLR (Pt. 632) 567 referred to] [P. 935, paras. C – F]

Duty on court when its discretion is sought by a litigant  Whenever the exercise of the court’s discretion is sought, the court is enjoined to consider all the evidence placed before it and relied on by the applicant as well as the peculiar facts and circumstances of the casc.

[Alamieyesiegha v. F R. N. (2006) 16 NWLR (Pt. 1004) 1; Atiku v. State (2002) 4 NWLR (Pt. 757) 265, (2003) FWLR (Pt. 139) 1466; Ikhazuagbe v. CO.P. (2004) 7 NWLR (Pt. 872) 346, (2005) All FWLR (Pt. 266) 1323 referred to] [P. 935, paras. F – G]

What a cross-appeal is – Where a respondent wants a reversal of decision, a part thereof or any conclusion of fact in the decision, his proper procedure is by way of a cross-appeal. A crossappeal is, therefore, like any other appeal and accordingly, is governed by the same rules as the main appeal. [P. 943, para. F]

Duty on a party who seeks to raise a new point on appeal

A party who seeks to raise a fresh point on appeal must in addition to seeking leave to appeal or leave to file and argue additional ground of appeal, where so necessary, expressly or specifically ask for leave to raise on appeal a fresh issue that was not canvassed in the trial court. [Kadzi Int’ 1 Ltd v. Kano Tannery Co. Ltd (2003) FWLR (Pt~ 184) 255, (2004); 4 NWLR (pt. 864) 545;

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