Theodore Emmanuel Charles Owoo & Ors V. Mrs Umo Asuquo Edet (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Respondent to this appeal was the plaintiff in Suit No. HC/54/2007, an action she instituted against the Appellants at the Calabar Division of the High Court of Cross River State holden at Calabar through the Writ of summons and Statement of Claim filed on 6th February, 2007. She claimed the following reliefs in paragraph 24 of the Statement of Claim:

“1. The sum of six million, five hundred and thirty seven thousand, nine hundred and fifty naira (N6, 537, 950.00) only being special damages suffered by the plaintiff on account of the defendants misrepresentations and/or breach of a contract to lease the defendants’ land at No. 71, Target Road, Calabar to the plaintiff to build and occupy as a tenant until the expiration of her rents.

In the Alternative

A Declaration that the plaintiff is entitled either by herself, agents or privies to the quiet and peaceful enjoyment, use and occupation of the property situated at No. 71, Target Road, Calabar until the expiration of her rent on 31st March, 2042 with out any interference, harassment or disturbance from the defendants, their servants, agents or privies.

2. Ten million naira being general damages for the various acts of trespass committed by the defendants at the property and premises situated at No.71 Target Road, Calabar while it was in the lawful possession of the plaintiff.
3. An order of perpetual injunction restraining the defendants by themselves, their servants, agents or privies from committing further acts of trespass or interference in the said property until the expiration and/or lawful determination of the plaintiff’s lease of the said premises.”

The plaintiff later in the proceedings abandoned the alternative claim in relief no. 1 as well as the relief no. 3 for a declaration and perpetual injunction respectively. The plaintiff was then left with reliefs 1 and 2 for N6, 537, 950.00 special damages and N10, 000, 000.00 general damages. See Page 97 of the record.

The Appellants as defendants denied the claim of the Respondent through their Statement of Defence/Counter Claim filed on 4th May 2007 wherein they claimed the following by way of counter claim against the Respondent:

1. An order that the Defendants against the plaintiff are entitled as 10% interest per annum on the unpaid rents or alternatively the profit, from October 2005 until the total sum final paid.
2. An order for the building at No. 71, Target Road, Calabar to be demolished as same without the approval authority o. consent of the Defendants and as it now poses, a danger to the Defendants.
3. General damages N10, 000, 000.00 (ten million for trespass on Defendants, property at No. 71 Target Road, Calabar from October 2005.
4. Special damages for the consequential loss caused to the Defendants by the plaintiff’s trespass on No. 71 Target Road calabar and being unpaid rent due from the plaintiff for the use of occupation of the said No. 71 Target Road from October 2005.

PARTICULARS OF SPECIAL DAMAGE

(a) For the period October 2005 – September 2006 at the annual rent value of N780, 000.00.

(b) For the period of October 2006 up to judgment at the annual rent value of N780, 000.00″

The Parties expressed respective positions through their respective pleadings. I note that by paragraph 6 of their Statement of Defence and Counter Claim, the Appellants expressly admitted the averments in paragraphs 7, 8, 12, 13, 14, 15, 16, 17 and 18 of Respondent’s Statement of Claim. The facts in those paragraphs thus became settled upon the pleadings as admitted facts which require no further proof by the Respondent in line with section 75 of Evidence Act. It is settled that facts admitted do not require to be proved further. See Olagunju vs. Oyeniran (1996) 6 NWLR (Pt. 453) 127; Agbanelo vs. Union Bank of Nigeria Ltd. (2004) 4 SC (Pt. 1) 233; Akpan vs. Umoh (1999) 7 SC (Pt. II) 13; Asafa Foods vs. Alraine Ltd. (2002) 5 SCNJ 53

It was therefore not disputed that the Appellants had a parcel of land at Target Road, by Asi Eta Street, Calabar comprising their family house at No. 1A Asi Eta Street, Calabar and a plot of land at No. 71, Target Road, calabar which was originally owned by their deceased father.

The Respondent who operated Restaurant orally approached the Appellants for the lease No. 71, Target Road calabar to construct a structure on that land for her business. The cost of construction was to be borne by the Respondent who would occupy as appellants’ tenant but utilizing the amount expended on the structure as the rent until such sum would have been exhausted. They agreed that a written agreement was to be prepared by the appellants, solicitors. The land to be used was marked and the 1st appellant collected N750, 000.00 from the respondent for the construction of a demarcating wall to clearly separate the area to be used.

The construction of fence was embarked upon by the 1st appellant but was later abandoned by him. Although not expressly admitted by the appellants, the evidence of the Respondent and that of the DW2, Ekpe Ita Nyong show that a design of the building to be constructed on the land was prepared with the concurrence of both parties while the Respondent submitted an estimate of the building. Both were admitted as exhibits 1 and 2 respectively. The Respondent stated this in evidence at page 91 of the record: