Alhaji Oseni Oyewo V. Dr. B. D. Komolafe (2010)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the judgment of the High Court of the Federal Capital Temtory delivered on the 18th day of March, 2005 by Hon. Justice S. D. Bage.

The brief fact of the case is that the Appellant, the landlord of a premise situated at Area 8 Garki, Abuja let out the said premises to the Respondent as a yearly Tenant. The premises being at a final stage of completion it was agreed between the parties that rent would be utilized by the Respondent to compete the building. The parties entered into a Tenancy agreement concerning the premises whilst the Respondent commenced the final completion of the building. The Appellant however alleges that the Respondent breached the terms of the agreement and later gave the Respondent six months notice to vacate the premises. After the expiration of the six months notice, a notice of owner’s intention to recover possession was given to the Respondent. Thereafter, the Respondent/Cross-Appellant commenced this suit; the Appellant filed his defence and included a counter-claim. The main claim of the Respondent/Cross-Appellant was struck out and the counter-claim went into trial. Judgment was delivered by the trial Court and certain reliefs were granted.

The parties were both dissatisfied with the Judgment. The Appellant filed this Appeal at the lower Court on 12th May, 2005 whilst the Respondent/Cross Appellant applied for and obtained leave of this Court to file his Cross-Appeal out of time. The Appellant/Cross-Respondent also filed an amended Notice of Appeal with the leave of this Court.

The Appellant’s Brief of Argument dated 10th April, 2007 was deemed filed on 4th December, 2007. The Respondent’s/Cross-Appellant’s Brief of Argument dated 24th march, 2009 was filed same day. Appellant also filed on 15th April, 2009 a reply to Respondent’s/Cross-Appellant’s Brief dated 8th April, 2009; whilst the Respondent/Cross-Appellant filled on 6th May, 2009 a reply to Cross-Respondent’s Brief dated 4th May, 2009. Parties have exchanged their various Briefs.

From the Appellant’s original Six Grounds of Appeal and the additional Ground of Appeal, five issues were distilled for the determination of this Appeal. They are as follows:

“1. Whether the learned trial Judge was right in awarding N150, 000.00 mesne profit per annum, when the Respondent had not traversed the claim of N750,000.00 mesne profit per annum in his own pleadings.

2. Whether the learned trial Judge was right in fixing the mesne profit at N150, 000.00per annum on his own rather than relying on the evidence before Him which put the rental value of the premises at between N600,000 to N800,000per annum.
3. Whether the learned trial Judge was right in dismissing Appellant’s claim for cost of 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 premises in view of the unconverted evidence of the negligence of the Respondent in failing to properly hand over the premises to the Appellant which led to its vandalisation.
4. Whether the learned trial Judge was in error in failing to award pre-judgment interest on the amount claimed in view of the circumstances of this case.
5. Whether the learned trial Judge exercised his discretion judiciously and judicially when he awarded cost of N10,000 out of N100,000 asked for by the Appellant in view of the circumstances of this case.”

On behalf of the Respondent the following respondent, the following issues were distilled for the determination of this Appeal as follows:-

“1. Whether, from the state of the parties pleading and the evidence adduced before him, the trial Judge was right in his exercise of discretion to fix and award mesne profit of N150.000.00 to the Appellant as against the claim of N750,000.00.

2. Whether, from the parties’ pleadings and evidence, the trial judge erred in holding that the Appellant failed to prove his claim for alteration, vandalisation and repairs to prove his claim for reimbursement of expenses.
3. Whether or not the trial judge was right in holding that the Appellant had failed to discharge the burden of proof regarding his claim for vandalisation of the property and any pre-judgment interest.
4. Whether, from the record, the Appellant has proved any special circumstances to justify this appellate Court interfering with the trial Court’s discretion in the award of cost.”

On behalf of the Cross-Appellant, the following three issues were distilled for the determination of the Cross-Appeal:

“1. Whether, on the facts and evidence before the trial Court, the Judge did no, err in his conclusion 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.

2. Whether from the pleadings and evidence before the trial Court, the statutory notices served by Cross-Respondent through his Agents/Solicitors on the Cross- Appellant are valid in law.
3. Whether or not, 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.”

It is tidier to resolve the Appeal first before delivering into the Cross-Appeal. I have carefully perused the issues as distilled by both the Appellant and Respondent for the determination of the Appeal and I am of the opinion that they are similar; however, I prefer the issues as formulated by the Appellant and I adopt them accordingly for the determination of this Appeal.

Issue One:

“Whether the learned trial Judge was right in warding N150,000.00 mesne profit per annum, when the Respondent had not traversed the claim of N750.000.00 mesne profit per annum in his own pleadings.”