Ahmed Debs & Ors. V. Cenico Nigeria Ltd (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

The facts of this case lie comparatively within a very narrow compass. Not much was in dispute. From a closer consideration of the pleadings, it is my view that at the close of the pleadings, the Defendant/Company did not specifically deny that the annual value of the premises at No. 15 Commercial Road, Apapa, was, by October 1979, N220,000.00.

If this is the position then by the rules of pleadings – any matter not specifically denied or stated not to be admitted should be regarded as established:- Messrs Lewis & Peat (N.R. I) Ltd. v. A. E. Akhimien (1976) 7 Sc. 157 at pp. 163/164. This was not done. Evidence was led. And from the totality of that evidence, it was open to the learned trial Judge to evaluate the available evidence and arrive at the rate of mesne profits borne out by that evidence.

The Appellants as Plaintiffs sued the Defendant/Company for recovery of possession of the premises at No. 15 Commercial Road, Apapa, Lagos. The Defendant/Company was the leasee of the premises aforementioned. The rent reserved in the lease was 8,175pounds or N16,350.00 per annum. The tenancy expired on 30th September 1979. On the 17th October 1979, the Plaintiffs served on the Defendant/Company the usual notice of their intention to recover possession of the premises. The Defendant Company did not vacate the premises.

The Company held over. The Plaintiffs then sued for possession and for mesne profits at the rate of N220,000.00 perannum from 1st October, 1979 until possession is given up. At the trial, Abdul R. Debs gave evidence as P.W.1. The Managing Director of the Defendant/Company, Kovlizek Blastimil gave evidence for the defence as D.W.1. Apart from P.W.1 and D.W.1, the parties called no further witnesses. The learned trial Judge, Savage, J., on the evidence before him found for the Plaintiffs and ordered the Defendant/Company “to give up possession of No. 15 Commercial Road, Apapa to the Plaintiffs on or before 31st March, 1982 and to pay mesne profits at the rate of N165,000.00 per annum with effect from the 1st of October 1979 until possession is given up”.

The Defendant/Company apparently aggrieved by the judgment of the trial Court then appealed to the Court of Appeal, Lagos Division. One of the original grounds of appeal was:-

“(3) That the learned trial Judge erred in law and in fact in fixing mesne profits at the rate of N7.50 per square foot when there was no expert evidence on the rent obtained in Apapa area or the percentage of increase over the previous year.”

The grounds of appeal were later amended. After hearing arguments and submissions, the Court of Appeal (Kazeem, Ademola and Nnaemeka-Agu, J.C.A.) allowed the appeal and set aside the judgment of the trial court in favour of the Plaintiffs.

The Plaintiffs have now appealed to this court. Only one ground was argued both in learned counsel’s brief and in his oral submission made before this Court:-

“3. There is no law that the only way to prove mesne profits is by calling expert evidence” .

In its judgment at p.69 of the record, the court below observed:-

“Mr. Lardner’s real argument in this appeal turns on his submission on the failure of the Respondent to establish by evidence an award of mesne profits at a rate different from the usual rent being paid by a tenant. The onus was on the respondent to lead evidence of a higher rate in respect of properties similar in size and in the same locality, with the premises which is the subject matter in this appeal. Mr. Lardner had submitted that the Respondent’s contention for the calculation of mesne profits at the rate of N10 per square foot was not based upon any evidence neither was the rate of N7.50 per sq. foot used by the learned Judge grounded on any part of the case by both parties. Therefore the Judge was wrong to have used the rate of N7.50 per square foot in his calculation for the award of mesne profits.”

(Italics mine to emphasise that one has to look at the pleadings to see what issues arose therefrom requiring proof by evidence).

The Court below seems to have swallowed the above submission by Mr. Lardner hook, line and sinker for it then went on:-