Hajiya Hauwa Tanko V. Kaduna North Local Government (2002)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

The dispute between the parties in this appeal started before the High Court of Justice of Kaduna State at Kaduna where the Appellant as the Plaintiff by a Writ of Summons instituted an action against the Respondent which was the Defendant and claimed as follows in paragraph 16 of her Amended Statement of Claim:-

“Where of the Plaintiff claim against the Defendant as follows: –

1. (a) An order against the Defendant to account to the Plaintiff in the sum of N60, 000.00 for the year 1995 being money(s), rent(s) or the like derived from such renting.

(b) An order directing the Defendant to account to the Plaintiff in respect of all money(s), rent(s) or the like that will accrue or find their way into the Defendant’s hands in respect of the restaurants forming part of Mando Motor Park Inn at the rate of N60, 000.00 per annum or as they- may appreciate for the remaining 7 years (1996-2002) i. e N420, 000.00 more.

(c) The Plaintiff claims the sum of N480, 000.00 as damages (particulars already specified in the body of the claim). For unlawful seizure of the two (2) restaurants by the defendant.

2. The sum of N100, 000.00 as damages for trespass.
3. A declaration that the purported revocation of the lease agreement between the Plaintiff and the Defendant vide defendant’s letter of 25th August, 1995 and 31st August, 1995, is wrongful, unlawful, illegal, null and void and of no effect whatsoever and howsoever.
4. The sum of N435, 500.00 as damages being loss of profit or earnings for the unlawful and illegal dispossession of the Plaintiff of the physical possession of Mando Motor Park Inn by the Defendant from 8th September, 1995 – June 1996 (i. e 297 days x 1500 = N435, 500.00) and thereafter N1, 500.00 per day until possession is delivered to the Plaintiff.
5. An order of perpetual injunction restraining the Defendant either by itself, agents, servant and or otherwise howsoever from intimidating, harassing or disturbing the Plaintiff’s quiet possession of the remaining part of Mando Park Inn.”

Pleadings were duly filed and exchanged between the parties after which the matter proceeded to hearing before Ja’afaru J. where the Plaintiff was the only witness who testified in support of her claims.

At the end of her evidence, the plaintiff was vigorously cross-examined by the Defendant’s counsel before closing her case in the course of the presentation of which 7 documentary exhibits including the Lease Agreement executed between the parties, were tendered and received in evidence.

Although the Defendant in the case had filed its Amended Statement of Defence in which a number of defences including alleged breaches of covenants in the Lease Agreement by the Plaintiff were raised, no witnesses were called by the Defendant to establish these defence inspite of several adjournments granted to the Defendant. Even the opportunity to address the trial court on the evidence led by Plaintiff in support of her claims was not utilised by the Defendant up to the time the matter was finally adjourned for Judgment. In his Judgment delivered on 6/11/97, the learned trial Judge found that the Plaintiff had proved her case of breach of contract against the Defendant to be entitled to Judgment in her claims for damages. However, the learned trial Judge Suo motu applied the principle of mitigation of damages and awarded the Plaintiff the sum of N60, 000.00 as damages. Part of the Judgment at pages 83 – 84 of the record of this appeal reads:-

“I find that that claim has been proved. It is a minimum proof required as there is no contradicting evidence. Instead there is an admission.

The plaintiff is entitled to be placed to a position she would have been had there been no breach.”

The learned trial Judge instead of applying this correct finding and statement of the law to the facts proved before him, turned round on his own without any plea from the Defendant to impose on the Plaintiff the duty to mitigate her hardship or loss arising from the breach of the contract in assessing damages as follows:-

“By Exhibit I, the Plaintiff is a yearly tenant. It is her duty to mitigate her loss or hardship. I am inclined to award the sum of N60, 000.00 only for the claims set out in paragraph 16(1) (c) & (4) of the Amended Statement of Claim.”

Although there is no positive order dismissing the Plaintiff’s claims for damages for trespass, injunction and specific performance in the Judgment, it is clear that the learned trial Judge had deemed the claim for specific performance as abandoned while the claim for injunction and trespass as having failed. It is against this Judgment that the Plaintiff, whom I shall henceforth refer to as Appellant in this Judgment while the Defendant as the Respondent, had appealed to this court. The Notice of Appeal filed by the Appellant contained 7 grounds of appeal.

In line with the rules of this court, brief of argument was duly filed and served on behalf of the Appellant. Although the Appellant’s brief of argument was duly served on the Respondent, up to the time this appeal came up for hearing before this court on 11/4/2002, no Respondent’s brief of argument was filed and served on behalf of the Respondent. Consequently, in accordance with Order 6 Rule 10 of the rules of this court, the appeal was heard on the Appellant’s brief of argument alone and in the absence of the Respondent which was served.