Ahmed Debs & Ors. V. Cenico Nigeria Ltd (1986)
LawGlobal-Hub Lead Judgment Report
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:-
“I think there is substance in this submission. I do not understand what the learned Judge meant when he said that the Respondent led evidence in the court below that the rate of N10 per square foot was the prevailing rate for premises at No. 15 Commercial Road, Apapa because as the learned Judge himself conceded, no expert witness was called by the Respondent to substantiate the Respondent’s mere ipse dixit. Equally difficult to understand is the learned Judge’s acceptance of the rate of N7.50 per square foot for premises at Amuwo Odofin or Isolo as this was not based upon the evidence of any witness whatsoever but again the ipse dixit of the Appellant. It therefore follows then that not having any evidence on which to proceed in his assessment of mesne profit the learned Judge should have used the annual rent being paid by the Appellant to the Respondent as a yardstick in his determination of the mesne profit.
The above judgment is predicated on the following facts:-
(1) that the alleged ipse dixit of the Plaintiff in the trial Court was not evidence;
(2) that to prove mesne profits a Plaintiff must call expert evidence;
(3) that when a tenancy has expired and a Defendant holds over, the mesne profits are calculated on the former rent reserved in the lease that had already expired.
These are the three questions for consideration in this appeal.
To begin with, it is necessary to have a clear idea of what mesne profits are. In Bramwell v. Bramwell (1942) 1 K.B. 370; (1942) 1 ALL ELR. 137 at p.13S, Goddard, L.J. described the expression “mesne profits” as “only another term for damages for trespass arising from the particular relationship of landlord and tenant”. The expression “mesne profits” simply means intermediate profits – that is, profits accruing between two points of time that is between the date when the Defendant ceased to hold the premises as a tenant and the date he gives up possession. Rent is different from mesne profits. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy, while mesne profits start to run when the tenancy expires and the tenant holds over. The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession. (as in the case now on appeal).
In the case now on appeal, the Defendant’s tenancy expired on 30/9/79 and on 17/10/79 the Plaintiffs served on the Defendant a notice in writing of their intention to recover possession. It is thus clear that from 30/9/79 the Defendant/Company was no longer the tenant of the Plaintiffs. The Plaintiffs can no longer claim rents from the Defendant/Company and I dare say the Plaintiffs are not bound to use the rent payable during the tenancy as an index of the rate of mesne profits. This point was brought out by the judgment of this court in Felix O. Osawaru v. Simeon O. Ezeruka (1978) 6/7 SC.135 at p. 139. With respect the view of Ademola, J.C.A. that the learned trial Judge “should have used the annual rent being paid by the Appellant to the Respondent as a yardstick in his determination of mesne profits” does not seem to be applicable in this case in view of the state of the pleadings and the evidence led in the trial Court.
It is trite law that mesne profits are generally calculated on the yearly value of the premises. The rent in a lease made in April 1969 may not reflect the value of the property in 1979 – yearly value that is. I agree that the onus is on the Plaintiffs to establish what this yearly value is. In the case of Marine & General Assurance Company v. Antoine Rossek & Anor. (1986) 2 NWLR 750 the evidence of the annual value of the premises then in dispute was given by one Mr. S.K. Oludemi, a qualified Valuer. The question now is – Is it in every case that a Plaintiff claiming mesne profits will necessarily call expert evidence My answer to this hypothetical question will be that much will depend on the pleadings and the issues raised on those pleadings requiring proof.
In his Writ of Summons, the Plaintiffs claimed mesne profits at the rate of N220,000.00 per annum. What was the Defendant’s reply to this claim of N220,000.00 as the annual value of premises at No. 15 Commercial Road Apapa Throughout the Statement of Defence, the Defendant/company took the view that they were still tenants of the Plaintiffs and regarded the “Plaintiffs’ action as motivated by a desire to increase the rent of the premises inordinately from N32,000.00 per annum to N220,000.00 “(see para. 12 of the Statement of Claim). I will reproduce the subsequent paragraphs of the Statement of Defence:-
“13. The Defendant will at the trial prove that the Plaintiffs are not entitled to increase the rent. The Defendant will rely on the Government’s Incomes Policy Guidelines 1979/80 contained in Government Notice No. 424, Federal Government Official Gazette of 12th April 1979.
“14. The Defendant denies that the Plaintiffs are entitled to mesne profits at the rate of N220,000.00 or at all since the Defendant has tendered the rent and is always prepared to pay its rent at the rate of N32,000.00 per annum.”
It is obvious from the above that the Defendant’s pleadings did not answer the point in issue – that is that the premises at No.15 Commercial Road, Apapa, had at the time the Plaintiffs’ Writ was issued, an annual value of N220,000.00 The Defendant has to admit that its lease of the Plaintiffs’ premises at No.15 Commercial Road, Apapa, expired on 30/0/79. By mere effluxion of time the relationship of landlord and tenant ceased to exist between the parties. Rent was then out of the question. The only issue was the annual value of the premises. The Plaintiffs claimed that annual value or mesne profits was N220,000.00.This was not traversed by the defence. The learned trial Judge should have regarded that issue as established at the close of pleadings. But he did not. The case proceeded to trial. Abdul R. Debs gave evidence as P.W.1. His evidence of the material issue on the yearly value of the premises at p.19 Lines 32-35 of the record is as follows:-
“At the relevant time the rent per square foot is N10,00. Therefore we are asking for N220,000.00 per annual from 1/10/79 until possession is given up.”
Under cross-examination at p.21 lines 27-28 of the record, the P.W.1 confirmed:-
“We ourselves pay N10.00 per square foot for a similar property during the said period and now.”
The Defendant’s case was as testified by D.W.1 Kovlizek Blastimil. He stuck to the belief that although his lease has expired but he still wants to continue as tenant of the Plaintiffs on the old terms and conditions. But on the issue of the annual value of a ware-house at Apapa he had this to say under cross-examination at p.23 Lines 19-23:-
“We did make effort to secure another warehouse at Apapa.
We tried about two to four premises. I can’t remember the addresses. The premises we were looking for were at Isolo and not Apapa. I would say that the offer was something like N7.50 per square foot. I agree that it is more difficult to get a warehouse at Apapa than at any other place.
This was the case before the learned trial Judge.
My view of the pleadings and the evidence is that the Defendant/company did not deny that a warehouse like No.15 Commercial Road, Apapa would be valued at N10 per square foot. Giving evidence, D.W.1 admitted that a warehouse in Apapa is more difficult to get than anywhere else. This simply means that a warehouse in Apapa would naturally be more expensive. If then in Isolo the value is N7.50 per square foot afortiori Apapa will be more than N7.50 per square foot. In other words the Plaintiff’s estimated value of N10 per square foot has been confirmed by the evidence of D.W.1.
The learned trial Judge was therefore wrong in using the figure N7.50 as a basis for calculating the mesne profits. But there is no appeal on this point. The learned Justices of Appeal described the assessment of mesne profits at the rate of N7.50 per square foot as the “mere ipse dixit of the Respondent” (the Plaintiff). Actually it was the ipse dixit of D.W.1 and not P.W.1. Now ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual.
There can be no question that a “mere ipse dixit” is admissible evidence but it is evidence resting on the assertion of the one who made it. Where there is need for further proof “a mere ipse dixit” may not be enough. In this case, the evidence of D.W.1 supplemented the evidence of P.W.1 on the annual value of the premises in dispute. The case went more than the mere ipse dixit of the Appellants. As the Appellants contended rather forcefully in their Brief, the attitude of the court below about the evaluation of the annual mesne profits for No. 15 Commercial Road, Apapa confuses admissibility of evidence and weight. I agree. A mere ipse dixit is in any event evidence. The weight to be attached to such evidence is an entirely different matter. With the greatest respect it is my humble view that the court below was wrong in its finding that “not having any evidence on which to proceed in his assessment of mesne profits the learned trial Judge should have used the annual rent being paid by the appellant to the respondent as a yardstick in his determination of the mesne profits”. The evidence of P.W.1 that “we ourselves pay N10 per square foot for a similar property during the said period” was not challenged. That was a yardstick. In fact D.W.1’s evidence that “it is more difficult (and it must then follow that it is more expensive) to get a warehouse at Apapa than at any other place” and his further evidence “that at Isolo (a less expensive area) the cost of warehouse is N7.50 per square foot” both support the evidence of the Plaintiffs. It is no longer the mere ipse dixit of the Plaintiffs but the evidence of the P. W.1 supported by the evidence of D.W.1. I do not see any reason why a court cannot act on the combined effect of the evidence of P.W.1 and D.W.1. It was out of an abundance of caution that the learned trial Judge based his calculation on N7.50 per square foot. He erred (it should have been N10 per square foot) but he erred on the side of caution. It was wrong of the Court below to have set aside the judgment of the trial Court. A calm and dispassionate view of the pleadings, the issues raised and the evidence led all go to show that the Plaintiffs’ case was unanswerable. The Plaintiffs deserved to win. The trial Judge was right in giving the Plaintiffs judgment and the Court of Appeal was wrong in setting aside that judgment.
Finally on the issue of calling expert evidence. My only comment is that though desirable, it is not imperative that whenever a party claims mesne profits, he must call expert evidence. Much will depend on the pleadings, the issues and the available evidence. This is not an area where this court should pontificate or try to lay down rules to be followed in every case. No. Each case has to be decided on its peculiar set of facts, issues and evidence.
It is for all the reasons given above that I will allow this appeal and set aside the judgment and costs of the Court of Appeal dated 22nd day of August, 1983. The judgment of the trial court is hereby restored. There will be costs to the Appellant in this Court which I assess at N300.00 and costs in the Court below assessed at N250.00.
ESO, J.S.C. (Presiding): I have had a preview of the judgment which has now been delivered by Oputa, J.S.C. and I agree with him that there is nothing wrong with “ipse, dixit” as a piece of evidence. It is admissible and the weight to be placed upon it would depend on circumstances. A party’s ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. It could be admitted. It could be left just uncontradicted. It is for the court, in evaluating the evidence, to take every circumstance into consideration.
In this case, the Court of Appeal referred to the assessment of mesne profits at the rate of N7.50 per square foot as a “mere ipse dixit of the Respondent”.
With respect, there is nothing “mere” about any evidence just because it was given by a person interested. It is still evidence. Whether it would be accepted or not depends on other circumstances and not on its being “mere ipse dixit”.
I will therefore for this reason and the reasons given by Oputa, J.S.C. in his judgment, with which I am in agreement allow the appeal and abide by all the other orders made by my learned brother Oputa, J.S.C.
UWAIS, J.S.C.: I have read in draft the judgment read by my learned brother Oputa, J.S.C. and I entirely agree that the appeal should be allowed. I endorse the order as to costs made in the said judgment.
KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my learned brother Oputa, J.S.C. in this appeal. I agree that this appeal ought to be allowed.
The only ground of appeal argued before us was that
“3. There is no law that the only way to prove mesne profits is by calling expert evidence.”
The Court of Appeal allowed the appeal against the judgment of the High Court because the learned trial Judge had fixed mesne profits at the rate of N7.50 per square foot without the evidence of an expert on the rent obtained in Apapa area or the percentage of increase over the previous year. I am sure the question of mesne profits is not one that must necessarily be determined only by expert evidence in every case.
My learned brother Oputa, J.S.C. has dealt so exhaustively with the law and the facts of this case, that I consider it superflous to add my own views. I endorse his reasoning and conclusions.
The judgment of the court of Appeal is therefore set aside.
Respondents shall pay N300 as costs to the Appellants.
KAWU, J.S.C.: I have had the advantage of reading, in draft, the judgment of my learned brother, Oputa, J.S.C., which has just been delivered, and for the reasons stated in the said judgment; I agree that the appeal ought to be allowed. The appeal succeeds and it is hereby allowed. I abide by the consequential order made in the lead judgment.