CASE SUMMARY OF:
Ahmed Debs & Ors. v. Cenico Nigeria Ltd. (1986) - SC
- Mesne profit;
1. Ahmed Debs;
2. Abdul Debs;
3. Mohammed Debs
1. Cenico Nigeria Ltd.
(1986) NWLR (Pt. 32) 846
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Mr. A. O. Sogbesan, S.A.N.
* FOR THE RESPONDENT
- Mr. H. A. Lardner, S.A.N.
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FACT (as relating to the issues)
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.
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.
HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED WITH N750 COST AGAINST THE RESPONDENT]
1. ISSUES 1, 2, & 3 WERE RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENT.
i. 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.
ii. 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.
iii. 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.
iv. 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.
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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. - Oputa JSC. Ahmed v. Cenico (1986)
Now ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. - Oputa JSC. Ahmed v. Cenico (1986)
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". - Eso JSC. Ahmed v. Cenico (1986)
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