Leases & Tenancy

………………..A………………..

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Ibadan Division delivered on the 17th April, 2008 in Appeal No. CA/1/15/2007 wherein the lower Court dismissed the appeal of the Appellant therein. The relevant facts leading to this appeal as can be garnered from the record of appeal are stated hereunder.
In executing the contract awarded to it by the Federal Government to dualise the Ibadan/Ife Road, the Respondent, a Construction Company, entered into a number of lease Agreements with the Appellant to use his land for “site erection and excavation of materials.” Clause 5 in the Agreements dated 10th April 1995, 26th November 1996, 16th May 1997, & 10th June 1997, reads: –
“It is herein agreed that the said parcel of land shall be levelled and made usable by Reynolds after the completion of the Road before handing it over to the said owner. The land owner shall make available a trustworthy watchman and shall be employed by Reynolds within the period of operation.”
On completion of the project, the Appellant approached the Respondent to make good the land as previously agreed and after repeated demands to no avail, he instituted an action at the Ibadan High Court of Oyo State, claiming:
(a) A declaration that the defendant is in breach of the various lease Agreements on land entered with Plaintiff by failing to level and make usable the various parcels of land leased to her for the purposes of road construction by the Plaintiff at Idi-Omo Village, Egbeda Local Government Area, Ibadan particularly, the Agreements dated 10th April, 1995, 10th and 15th May 1995, 23rd January and 26th November 1996, 16th May and 10th June 1997.
(a) DAMAGES
SPECIAL
(1) Cost of repair of damage road – N743,149.20
(2) Amount required to rehabilitate damaged Parcel of land as per the lease Agreements – 3,712,500.00
(3) Cost of claim survey – 25,000.00
GENERAL DAMAGES – 1,000,000.00
5,480,649,20.
At the end of trial in which the Appellant called seven witnesses and one witness testified for the Respondent, and after hearing addresses of counsel, the learned trial Judge, A. A. Sanda, J., delivered his Judgment on the 18th of July 2005, wherein he granted the declaration as claimed by the Appellant.
He awarded the sum of N250,000.00 to him as general damages and N25,000.00 as cost of survey, but he dismissed the claim for special damages. Aggrieved by the decision, the Appellant appealed to the lower Court.
The lower Court in its judgment dismissed the appeal and affirmed the decision of the trial Court. Not being satisfied with the decision of the lower Court delivered on the 17th April 2008, the Appellant has further appealed to this Court.
The Appellant filed Notice of appeal containing four grounds of appeal. The Notice of Appeal is dated 9th July, 2008.
From the four grounds of appeal, the Appellant distilled one issue for the determination of this appeal as follows: –
“Whether in view of the concurrent funding (sic) of the lower Court and the Court of Appeal that the Respondent was in breach of the various lease Agreement entered with the Appellant by failing to level and make usable the various parcels of land leased to her for purposes of road construction, it (the Court of Appeal) was justified in dismissing the Appellant’s claim for money required to level and make the said piece of land and road usable.”
The above issue is contained in Appellant’s brief filed on the 28th May, 2010 by Bioye O. Asanike Esq., counsel for the Appellant who also adopted the said brief when the appeal was heard.
In the brief of argument filed on 19th May, 2015, by Adeleke O. Agboola Esq., on behalf of the respondent, sole issue was also formulated as follows: –
“Whether in view of the pleadings, evidence adduced and the state of the law the lower Court was right in upholding the decision of the trial Court thereby dismissing the Appeal.”
The issues as formulated by both Appellant and Respondent counsel are relatively the same. However, the issue formulated by the Respondent is more direct and clear and it will be adopted in determining this appeal.
Learned counsel for the Appellant submitted that the object of all forms of damages is to put the Appellant in the position he would have been had the Respondent not committed the tort for which the Appellant complained of. He cited NEPA VS. ALLI (1992) 10 SCNJ 34 at 49.
Learned counsel further observed that the Appellant at page 31 of the Record of Appeal pleaded the damages he is claiming from the Respondent.