Societe Commerciale Del’ouest African Nigeria Plc V. Mrs Glady’s A. Ozoh & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the leading Judgment)

On the 22nd August 2005, the Anambra State High court Onitsha Judicial division, sitting at Otuocha per P.A.C. Obidigwe, J delivered judgment in suit No. 0/769/98 against the defendant (now appellant) in favour of the plaintiffs (now respondents) in the following terms –

1. Declaration that by subletting/subleasing parts of the demised premises known as No. 3 New Market Road Onitsha, without the consent of the plaintiffs and the Governor, the defendant was in breach of the terms of the lease agreement.
2. Declaration that the defendant was in breach of the said lease agreement for not keeping the premises/property in good and substantial repairs during the continuance of the lease.
3. There is no evidence that any further rents were paid after the 1988 rent was returned to the defendant through Exhibits H and I. There is also evidence that the defendants collected rents from the sub-tenants whom the defendant put in the premises without the consent of the plaintiffs. The plaintiffs are in the circumstances, entitled to account for all rents collected by the defendant from the sub-leases. I therefore order that the defendant account for all moneys received from Orient Bank Plc and Cown Men Ltd. As rents from 1988 till, 31st August, 1999, and that the amount so accounted for be paid to the plaintiffs.
4. N1,500,000.00 (One million, five hundred thousand naira) as general damages for breach of covenants.
5. I assess and fix costs at N15,000.00.

Dissatisfied with this judgment, the defendant commenced this appeal No. CA/E/352/2006 by filing a notice of appeal containing 3 grounds of appeal. The parties have filed, exchanged and adopted their respective briefs of argument. The appellant in its brief of argument raised issues for determination as follows –

Whether the Trial Judge was right in awarding the sum of N1.5m (One Million, five thousand Naira only) for breach of covenant as well as accounts for all rent collected, in view of:

(a) The fact that forfeiture had already taken place;

(b) The clear provisions of exhibit ‘C’ ‘the lease’ for remedy for breach of covenant.

(c) The general Law creating the relief and guiding the award of damages for breach of covenant against subletting.

2. Whether the Trial Judge proceeded on the right principles and properly evaluated the evidence adduced and submissions made before the court before entering judgment for the respondents.

The respondents in their own brief of argument also raised two issues for determination as follows –

1. Having regard to the breaches committed by the Defendant/Appellant, whether the Learned Trial Judge was not right to have awarded general damages in the sum of N1,5000,000.00, and whether the amount was excessive in the circumstance of the case.
2. Was the Learned Trial Judge correct to have ordered that the Defendant/Appellant render account to the Plaintiffs/Respondents for all the rents collected by it from the sub-tenants notwithstanding that an award of general damages had been made/granted.

The appellants first issue for determination covers the two issues raised by the respondents.

Appellant’s issue No. 2 does not appear to touch on or derive from any of the three grounds of appeal in the notice of appeal. I cannot find any relationship between any of the grounds and this issue. The issue is obviously not distilled from any of the grounds in the notice of appeal.

An issue for determination in an appeal must be based on one or more of the grounds of the appeal. If an issue is not based on any of the grounds of an appeal, it is incompetent and must be struck out. The grounds of appeal constitute the foundation of the appeal. Therefore all issues and arguments of such issues must derive from the grounds to be valid and competent for consideration. See OKPALA & ANOR v. IBEME & ORS (1989) NWLR (pt. 102) 208, LATUNDE & ANOR v. LAJINFIN (1989) NWLR (pt. 108) 177, IKEMSON v. STATE (1989) NWLR (pt. 110) 455 and AKINBINU v. OSENI & ANOR (1992) 1 NWLR (pt. 215) 97. The appellants issue No. 2 is therefore incompetent as it is not based on any of the grounds of this appeal. It is accordingly struck out. It now follows from this striking out of appellant’s issue No. 2, that only appellant’s issue No. 1 is now remaining for determination. As I had stated herein, the said issue covers the two issues for determination by the respondents.

I adopt the appellants remaining issue as the issue for determination in this appeal. I will now proceed to determine this issue.

The arguments made by learned counsel for the appellant on the basis of this issue are in substance as follows –

1. Where a covenant against assignment or under letting, with a proviso for re-entry on breach of covenant, is breached, the lessor can either re-enter for the forfeiture or sue for damages for the breach.”
2. Since forfeiture had taken place, “the relief clearly open to the plaintiffs/Respondents at this stage is damages as a cost of reinstatement and the damages must be measured by the loss naturally flowing from the subletting.
3. “The general damages of N1.5m (One Million, five Hundred Thousand Naira only) awarded to the plaintiffs/Respondents, side by side with the account of all rents collected by the Defendant/Appellant is clearly a grievous error in law because, it:

a) Was not awarded strictly for reinstatement; and