OKAFOR & LEMNA CONSTRUCTION CO. LTD &ANOR

CITATION: (2018) LPELR-46001(CA)

In the Court of AppealIn the Calabar Judicial Division

Holden at Calabar

ON TUESDAY, 13TH NOVEMBER, 2018Suit No: CA/C/99/2011

Before Their Lordships:

OBANDE FESTUS OGBUINYA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of Appeal

BetweenENGINEER SYLVESTER OKAFOR - Appellant(s)

And1. LEMNA CONSTRUCTION CO. LTD2. CHIEF ANSELEM O. IBE - Respondent(s)

RATIO DECIDENDI

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1. ACTION - COUNTER-CLAIM: Effect of failure of a plaintiff to file a reply/defence to acounter-claim"A counter-claim is to all intents and purposes, a separate and independent action inits own right although a defendant, for convenience and speed, usually joins it with hisdefence. See OYEGBOLA V ESSO W. A. (1966)1 ALL NLR 170. Where a defendantcounter-claim against the plaintiff, the plaintiff is duty bound to file a reply in defenceto counter-claim, otherwise the Court is entitled, in fact obliged to assume that theplaintiff has no defence to the counter-claim and only enter judgment for thedefendant accordingly. This is so because where a defendant pleads certain facts in hispleading in support of his counter-claim, with necessary particulars, but the plaintifffails to reply to them, no issue is raised on such defendant's pleading and the Courtcan proceed to give judgment on it without much delay. See OGBONNA V AG. IMOSTATE (1992)1 NWLR (pt 220) 647 at 675 and 692. I have in this judgment reproducedthe appellant's counter-claim before the trial Court which essentially was for the sumsof N530,699.40 and N50,000.00 being cost of damages shown on the valuation report,Exhibit N and for being the money extorted by the police respectively. The learned trialCourt found in respect of the counter-claimant's claim for damages at page 232 of therecord of appeal as follows:- "At paragraph 2:10 on page 2 of his affidavit of defenceagainst the claims of the defendant it is stated that the inspection was done onWednesday 19/11/2003. The evidence is that the claimants were evicted from theproperty on 10/10/2003 by the 3rd party. I was not told what happened to the propertybetween 10/10/2003 and 19/11/2003 when the valuation was done. I am entitled toand I do hereby find and hold that during that period the property was in the custodyof the 3rd party who caused the ejection of the claimants from it." Still on the valuationExhibit N learned trial judge said:- "Again, Exhibit N is of little value as the tenant wasnot present when the inspection was done. For the above reasons this head of claimwhich involves the claim of N15,000.00 for producing the report, fails and is herebydismissed." Respecting the claim for N50,000.00 being cost of money extorted fromthe 3rd party by the police at Zone 6 upon a report ledged by the Defendant; Learnedtrial judge held:-"Extortion of money by the police is a crime which needs to be proved beyondreasonable doubt. Beyond the assertion of the 3rd party, no evidence was offered inproof of this criminal allegation. It fails for lack of proof at all talk less of proof beyonddoubt."I have stated that a counter-claim is a cross action and where the plaintiff fails inproving his claim, the defendant on proving his counter-claim may succeed. Whether inrespect of the claim or the counter-claim therefore, the plaintiff or the defendant as thecase may be must discharge the burden of establishing his entitlement to the reliefs heclaims. See AKINBADE V BABATUNDE (2018)7 NWLR (pt 1618) 366 at 395. On theappellant's contention that he was entitled to judgment on the 1st respondent's failureto file a counter to the counter-claim and to cross examine the claimant, the law isindeed settled on that point. The failure of a plaintiff to file a defence to a counter-claim may not be disastrous for the plaintiff if he succeeds in his claim, as his successmay render useless the counter-claim depending on the nature of the counter-claim.In the instant case, the success of the 1st respondent as claimant before the trial Courthad rendered the appellant's counter-claim useless and also having failed to establishhis entitlements in the counter-claim, the trial Court was right in dismissing theappellant's counter-claim."Per SHUAIBU, J.C.A. (Pp. 18-21, Paras. A-D) - read in context

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2. JUDGMENT AND ORDER - AWARD OF COST: Whether a successful party in anaction is entitled to cost"The award of costs is always at the discretion of Court exercised reasonably. It ishowever well settled that a successful party is entitled to costs unless there is anydisenabling circumstance to deprive him that entitlement. See ADENAIYA V GOVERNORIN COUNCIL (1962)1 SC NLR 442 and OBAYAGBONA v OBAZEE (1972) 5 SC 247. Costsare however not awarded as a punitive measure against the losing party but for thepurpose of meeting the legitimate expenses of the successful party either wholly orpartially as the Court may deem fit. See AKINBOBOLA V PLISSON FISKO (NIG) LTD(1991)1 NWLR (pt 167) 270. And when Costs are awarded judicially and reasonably tocompensate a successful party, an appellate Court will be quite wary to interfere withthe discretion of the Court as to the amount of costs. See REWANE V OKOTIE EBOH(1960) SCNLR 461 and LAYINKA V MAKINDE (2002) 5 SC (pt 1) 109 at 120. On the otherhand, if the award is made against established principles, it will be set aside by anappellate Court. See AGIDIGBI V AGIDIGBI (1996)6 NWLR (pt 454) 300.In the instant case, the appellant resorted to self help in evicting the 1st respondenteven when Exhibit A created a valid tenancy between the 2nd respondent and the 1strespondent. It was based on Exhibits B and C that the trial Court found the 2ndrespondent liable to the 1st respondent but because it was the appellant (3rd party)who after leasing his property to the 2nd respondent intermeddled in the sameproperty and caused all the damages, the trial Court ordered all the awards made infavour of the 1st respondent against the 2nd respondent to be exacted from the 3rdparty. Consequently, the costs awarded by the trial Court were based wholly on theestablished principles and there is therefore, no justification in interfering with the saidaward by this Court."Per SHUAIBU, J.C.A. (Pp. 13-14, Paras. B-F) - read in context

3. LAND LAW - TRESPASS TO LAND: Whether a tenant can maintain an action intrespass against the landlord"Considering the facts and circumstances in this case, the questions begging foranswers are who was in occupation and who was the trespasser? A tenant inoccupation can sue but not the landlord except in cases of injury to the reversion. Thisis where the trespass has caused a permanent injury to the land affecting the value ofthe hereditament. Then, he may sue for injury to his interest without waiting until hisfuture estate falls into possession. See SOLEH BONEH V AYODELE (1989) 2 SC (pt 1)708 at 117.A landlord has not the right to invade premises in the occupation of a tenant and casthis goods and belongings away even for safe-keeping without his consent. Whereas inthe present case, a landlord unilaterally enters into the premises of his tenant andtakes possession of the property or goods of the tenant; he has committed an act oftrespass. In the case of NATIONAL SALT COMPANY OF NIGERIA LTD V INNIS-PALMER(1992) 1 NWLR (pt 218) 422 at 426, it was held that everybody is forbidden to takepossession or repossession of a premises by self-help, force, strong hand or with amultitude of people. Similarly, everyone entitled to possession or repossession ofpremises can only do so by due process of law. Thus, no one must take law into hishands and everyone must apply to the Court for possession and act on the authority ofthe Court. The appellant was rightly held liable to the 2nd respondent in trespass."PerSHUAIBU, J.C.A. (Pp. 16-17, Paras. B-C) - read in context

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4. LANDLORD AND TENANT - TENANCY: What amounts to landlord & tenantrelationship"Tenancy is a legal relationship which exists between two people by which oneoccupies the other's land or house in exchange for rent. Usually the tenancyrelationship is contractual but it can also arise by operation of the law. The appellant'scontention here is that the temporary receipts, Exhibits F and L issued to the 2ndrespondent was not capable of creating any contractual obligation. Generally, acontract is a voluntary and legally binding agreement between two or more competentparties. Contracts are usually written but may be spoken or implied. There is thereforeno requirement that a contract must be in writing. It is therefore the duty of the Courtnot to look at a contract in a narrow manner for its interpretation. The entiredocuments must be looked into in construing the dealings of the parties in order toknow what they mean.Parties in this case are ad idem as to the fact that the 2nd respondent paid unto theAppellant the sum of N800,000.00 being rent for the latter's house at Ekorinim Calabarin which a receipt, Exhibit F was issued evidencing payment. The issue in contention iswhether or not the said payment and issuing of the receipt to the 2nd respondentconstitute a valid contract. At page 195 of the record of appeal, DW2 was veryemphatic on the point when he said:- "On 20/2/2003 I took defendant to 3rd partyhouse at Federal Housing Estate. They agreed on N400,000.00per annum. Defendant paid N800,000.00 for two years and was issued with a receipt.The receipt is Exhibit F now shown to me".He continued at page 196 of the record of appeal that:- "I was the 3rd party agent.Defendant paid commission to me N30,000.00 on 20/2/2003 and after two days hepaid N10,000.00 making N40,000.00. 3rd party did not pay any commission to thedefendant who came to rent his house." I have stated that a contract need not bewritten and that same may be created by words or through the conduct of the parties.In the instant case the parties that is, 2nd Respondent and the Appellant vide Exhibit Fentered into a tenancy agreement in respect of the appellant's house at Ekorinim,Calabar for a period of two years. And on the temporary nature of the receipt issued(Exhibit F), DW2 when crossed- examined at page 197 of the record of appeal has thisto say:-?"I was present when Defendant paid N800,000.00 to 3rd party. I saw when a receiptwas issued to the Defendant, I don't know why 3rd party called the receipt temporary".A receipt is a written acknowledgment that a specified sum of money or article hasbeen received and it does not matter whether it is temporary or permanent. Parties arebound by the agreement they willingly enter into. Therefore, the only function of theCourt is to interpret the agreement in enforceable terms without motive. SeeNATIONAL SALT COMPANY OF NIGERIA LTD V MRS. M. J. INNIS-PALMER (1992) NWLR(p.t 218) 422 at 434.Issue one is answered in the affirmative."Per SHUAIBU, J.C.A. (Pp. 6-9, Paras. E-C) -read in context

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5. LANDLORD AND TENANT - SUB-TENANT: The position of the law as regards a sub-tenant for the purposes of ejectment"It has been decided that a subtenant is protected whether there is a privity of contractor not, attornment of tenancy or not. A subtenant is for the purposes of ejectment, atenant and the provision of the laws must be followed before ejecting him. And onwhether there is a semblance of a legally binding agreement between the parties, thatis, a situation where the parties to the contract confer rights and imposes liabilities onthemselves, that will largely depend on whether there exists a mutual consentbetween them.However, where there is doubt on whether the parties have concluded a legally bindingagreement, the Court has the responsibility to analyse the circumstances surroundingthe alleged agreement and determine whether the traditional notion of offer andacceptance can be distilled from the purported agreement. The mutual assent must beoutwardly manifested. The test of the existence of such mutuality isobjective. Thus, when there is mutual assent, the parties are said to be ad idem. SeeSPARKLING BREWERIES LTD V UNION BANK (2001) 7SC (pt 11) 146 at 166. I have heldelsewhere in this judgment that a contract can be validly entered by words or throughconduct and in the present case, there was mutual consent between the appellant andthe 2nd respondent which was manifested through the payment of rent and theissuance of payment receipt, Exhibits F and L. I therefore cannot but agree completelywith the Learned trial judge when he held at page 226 of the record of appeal asfollows:- "The law is that document, speak for themselves. Exhibits F and L were issuedto the Defendant in his name, A. O. IBE. It does not describe the Defendant as beingagent of or representing anybody. I find and hold therefore based on Exhibits F and Lthat the 3rd party leased his 4 Bedroom flat at Essien Town, opposite theparliamentary village, Calabar to the Defendant for two years. I do not believe that theDefendant paid the rent on Exhibits F and L on behalf of anybody. I believe PW2 whosaid the 3rd party permitted Defendant to put tenants in the property after the Chinesepeople left. If that was not so why did the Defendant put security on the property afterthe Chinese people left. Why did the 3rd party not secure his property when histenants, the Chinese people left".?Learned trial judge went further and concluded thus: "The only agreement betweenthe Defendant and the 3rd party was as shown on Exhibits F and L. There is nothing onthem precluding the Defendant from subletting the property. Defendant was thereforewithin his rights to sublet the property to the Chinese people and the claimant here ashe did".I also answered issue two in the affirmative."Per SHUAIBU, J.C.A. (Pp. 10-12, Paras. B-D)- read in context

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MUHAMMED LAWAL SHUAIBU J.C.A. (Delivering

the Leading Judgment): The 1st Respondent as plaintiff

took out a writ under the undefended list against the 2nd

Respondent and claimed as follows:-

1. The sum of N300,000 being balance of money

fraudulently obtained by the defendant from the

plaintiff.

2. The sum of N310,000.00 being Hotel bills paid by

the plaintiff which the defendant had agreed to bear.

3. 21% interest, N610,000.00 (total of 1 & 2) above

from 15/10/2003 until judgment.

4. 10% interest on N610,000.00 until money is paid.

The 2nd Respondent as Defendant at the trial Court filed a

Notice of Intention to defend and based on which the case

was transferred to the general cause list. Subsequently, the

2nd Respondent applied and was granted leave to serve a

3rd party notice on Engineer Sylvester Okafor, the

appellant herein. On the 3rd party notice, the Defendant

claimed as follows against the 3rd party:-

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1. An Order that the 3rd party indemnifies the

Defendant against all the plaintiff’s claim and cost

that may be awarded in this case.

2. N5,000,000.00 being balance of rents paid by the

Defendant to the 3rd party after the Defendant

enjoyed only nine (9) months of his two years tenancy.

3. N4,500.00 cost of 3 ceiling Fans installed at the

property by the Defendant.

4. N45,000.00 being cost of tank and construction of

tank on the property by the Defendant.

5. N200,000.00 being legal fees incurred by the

Defendant to defend actions arising from this tenancy

agreement with the 3rd party.

6. N5 million general damages for breach of contract

and the resultant damages.

The third party on his part, counter claimed against the

Defendant as follows:-

(a) N530,699.40 being cost of repairing damages

done to the property by the Defendant illegal tenants

and cost of procuring a valuation report on the

damages.

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(b) N50,000.00 3rd party paid to the police to secure

his bail at Zone 6 Police Command.

(c) N6 Million damages for breach of contract,

trespass, fraudulent representation made by the

Defendant over the property, illegal subletting of the

property and the resultant damages.

After settlement of issues, the matter proceeded to trial

wherein the plaintiff called (1) one witness and tendered

exhibit A – E. The Defendant testified as DW1 and called

another witness. The 3rd party on his part adopted his

written statement on oath and was duly cross-examined.

In a reserved and considered judgment delivered on the

11th October, 2010, learned trial judge Hon. Justice E. E.

Ita, held inter alia at page 229 of the record of appeal as

follows:

“I have held that the two years term granted the

Defendant on Exhibits F. and L was still subsisting

and unexpired when the Defendant put the claimant

on the property. The evidence is that the claimant was

evicted by the 3rd party on 10/10/2003. That means

Defendant had been on the property from 13/4/2003

when the

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Chinese Company moved in to 10/10/2003 when the

3rd party unlawfully evicted the claimant from the

property a period of six months. N800,000.00 rent for

two years works out at N33,333.00 per months. For

six months it amounts to N199,999.00 N800,000.00

less N199,999.00 N600,001.00. The Defendant

however claim N500,000.00 on this head. I had earlier

awarded N300,000.00 of this head of claim to the

claimant as claim No.1 against the Defendant to be

paid by the 3rd party. I hereby award the balance

being N300,000.00 to be paid to the Defendant by the

3rd party”.

Being dissatisfied, 3rd party filed this appeal on 10/1/2004

and the notice of appeal contained six grounds of appeal at

pages 234 – 238 of the record of appeal.

Distilled from the said six grounds of appeal, learned

appellant’s counsel, Stanley Nkombe Esq. formulated (5)

five issues for the determination of this appeal as follows:-

1. Whether there was a valid contractual tenancy

relationship between the appellant and 2nd

Respondent. (Distilled from ground 1).

2. Whether the 2nd Respondent was right in

subletting the appellant’s property in view of Exhibits

F and L a

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temporary receipt. (Distilled from ground 2).

3. Whether the awards made against the appellant did

not occasion a miscarriage of justice. (Distilled from

grounds 3 and 4).

4. Whether the appellant is liable to the 2nd

Respondent in trespass considering the facts and

circumstances of this case. (Distilled from ground 5).

5. Whether the Appellant was not entitled to the

reliefs set out in his counter claim against the 1st

Respondent and 2nd Respondent jointly and severally.

(Distilled from ground 6).

Before proceeding to consider the appeal, it is worthy to

note that the Respondent inspite of the proof of service for

both the appellant’s brief and hearing notice, he has failed

and or neglected to file any process at the expiration of the

prescribed statutory period. The Respondent would

therefore not be heard on this appeal.

ISSUE ONE

Whether there was a valid contractual tenancy

relationship between the appellant and the 2nd

Respondent.

Learned appellant’s counsel submitted that there was no

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valid subsisting contract between the 2nd Respondent and

the Appellant, which is enforceable in law. He contended

that there is no letter or correspondences between the

parties and that the receipt issued to the 2nd Respondent

as evidence of payment was subject to a proper valid

tenancy relationship to be consummated at a later date.

It was also submitted that assuming there was a tenancy

relationship; same was inchoate in view of the phrase

“temporary receipt” written on the receipts, Exhibit F & L.

He further submitted that title and possession in law

resides with the person who provides money and occupying

the property as there is need to prove the root of title

before considering acts of possession. In aid, he relied on

THE REGISTERED TRUSTEES OF DIOCESE OF

ABA V. HELEN NKUME (2002) FWLR (pt 90) 1270 at

1272.

Tenancy is a legal relationship which exists between two

people by which one occupies the other’s land or house in

exchange for rent. Usually the tenancy relationship is

contractual but it can also arise by operation of the law.

The appellant’s contention here is that the temporary

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receipts, Exhibits F and L issued to the 2nd respondent was

not capable of creating any contractual obligation.

Generally, a contract is a voluntary and legally binding

agreement between two or more competent parties.

Contracts are usually written but may be spoken or

implied. There is therefore no requirement that a contract

must be in writing. It is therefore the duty of the Court not

to look at a contract in a narrow manner for its

interpretation. The entire documents must be looked into in

construing the dealings of the parties in order to know

what they mean.

Parties in this case are ad idem as to the fact that the 2nd

respondent paid unto the Appellant the sum of

N800,000.00 being rent for the latter’s house at Ekorinim

Calabar in which a receipt, Exhibit F was issued evidencing

payment. The issue in contention is whether or not the said

payment and issuing of the receipt to the 2nd respondent

constitute a valid contract. At page 195 of the record of

appeal, DW2 was very emphatic on the point when he said:-

“On 20/2/2003 I took defendant to 3rd party house at

Federal Housing Estate. They agreed on N400,000.00

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per annum. Defendant paid N800,000.00 for two years

and was issued with a receipt. The receipt is Exhibit F

now shown to me”.

He continued at page 196 of the record of appeal that:-

“I was the 3rd party agent. Defendant paid

commission to me N30,000.00 on 20/2/2003 and after

two days he paid N10,000.00 making N40,000.00. 3rd

party did not pay any commission to the defendant

who came to rent his house.”

I have stated that a contract need not be written and that

same may be created by words or through the conduct of

the parties. In the instant case the parties that is, 2nd

Respondent and the Appellant vide Exhibit F entered into a

tenancy agreement in respect of the appellant’s house at

Ekorinim, Calabar for a period of two years. And on the

temporary nature of the receipt issued (Exhibit F), DW2

when crossed- examined at page 197 of the record of

appeal has this to say:-

“I was present when Defendant paid N800,000.00 to

3rd party. I saw when a receipt was issued to the

Defendant, I don’t know why 3rd party called the

receipt temporary".

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A receipt is a written acknowledgment that a specified sum

of money or article has been received and it does not

matter whether it is temporary or permanent. Parties are

bound by the agreement they willingly enter into.

Therefore, the only function of the Court is to interpret the

agreement in enforceable terms without motive. See

NATIONAL SALT COMPANY OF NIGERIA LTD V

MRS. M. J. INNIS-PALMER (1992) NWLR (p.t 218)

422 at 434.

Issue one is answered in the affirmative.

ISSUE TWO

Whether the 2nd Respondent was right in subletting

the Appellant’s property in view of Exhibits F and L, a

temporary receipt.

The appellant’s contention is thus Exhibits F or L which is a

temporary receipt conferring any right on the 2nd

Respondent to sublet the property the 1st respondent after

the original tenants, the Chinese people have abandoned

the property. It was submitted that the 2nd respondent who

acted as agent to the Chinese people had no right to sublet

the property of the appellant to the 1st respondent. It was

further submitted that the trial Court would have been

right if

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the receipt, Exhibit F and / or L was not a temporary

receipt but being temporary and subject to other terms, it

cannot be the only agreement between the 2nd respondent

and the appellant.

It has been decided that a subtenant is protected whether

there is a privity of contract or not, attornment of tenancy

or not. A subtenant is for the purposes of ejectment, a

tenant and the provision of the laws must be followed

before ejecting him. And on whether there is a semblance

of a legally binding agreement between the parties, that is,

a situation where the parties to the contract confer rights

and imposes liabilities on themselves, that will largely

depend on whether there exists a mutual consent between

them.

However, where there is doubt on whether the parties have

concluded a legally binding agreement, the Court has the

responsibility to analyse the circumstances surrounding the

alleged agreement and determine whether the traditional

notion of offer and acceptance can be distilled from the

purported agreement. The mutual assent must be

outwardly manifested. The test of the existence of such

mutuality is

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objective. Thus, when there is mutual assent, the parties

are said to be ad idem. See SPARKLING BREWERIES

LTD V UNION BANK (2001) 7SC (pt 11) 146 at 166.

I have held elsewhere in this judgment that a contract can

be validly entered by words or through conduct and in the

present case, there was mutual consent between the

appellant and the 2nd respondent which was manifested

through the payment of rent and the issuance of payment

receipt, Exhibits F and L. I therefore cannot but agree

completely with the Learned trial judge when he held at

page 226 of the record of appeal as follows:-

“The law is that document, speak for themselves.

Exhibits F and L were issued to the Defendant in his

name, A. O. IBE. It does not describe the Defendant

as being agent of or representing anybody. I find and

hold therefore based on Exhibits F and L that the 3rd

party leased his 4 Bedroom flat at Essien Town,

opposite the parliamentary village, Calabar to the

Defendant for two years. I do not believe that the

Defendant paid the rent on Exhibits F and L on behalf

of anybody. I believe PW2 who said the 3rd party

permitted Defendant to put tenants in the property

after the Chinese people left.

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If that was not so why did the Defendant put security

on the property after the Chinese people left. Why did

the 3rd party not secure his property when his

tenants, the Chinese people left”.

Learned trial judge went further and concluded thus:

“The only agreement between the Defendant and the

3rd party was as shown on Exhibits F and L. There is

nothing on them precluding the Defendant from

subletting the property. Defendant was therefore

within his rights to sublet the property to the Chinese

people and the claimant here as he did”.

I also answered issue two in the affirmative.

ISSUE THREE

Whether the awards made against the appellant did

not occasion a miscarriage of justice.

Proffering argument on this issue, learned appellant’s

counsel submitted that throughout the transaction between

the 2nd respondent and the 1st respondent the appellant

was neither informed nor consulted. The appellant does not

know the said Engr. Boniface Onwuka who represented the

1st respondent. He was also not a privy to the 2nd

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respondent’s undertaking, Exhibit B as well as the

description of expenses Exhibit C, yet the trial judge

ordered that all the awards made in favour of the 1st

respondent against the 2nd respondent shall be exacted

from the appellant. This according to the learned counsel

has occasioned a miscarriage of justice.

The award of costs is always at the discretion of Court

exercised reasonably. It is however well settled that a

successful party is entitled to costs unless there is any

disenabling circumstance to deprive him that entitlement.

See ADENAIYA V GOVERNOR IN COUNCIL (1962)1

SC NLR 442 and OBAYAGBONA v OBAZEE (1972) 5

SC 247. Costs are however not awarded as a punitive

measure against the losing party but for the purpose of

meeting the legitimate expenses of the successful party

either wholly or partially as the Court may deem fit. See

AKINBOBOLA V PLISSON FISKO (NIG) LTD (1991)1

NWLR (pt 167) 270. And when Costs are awarded

judicially and reasonably to compensate a successful party,

an appellate Court will be quite wary to interfere with the

discretion of the Court as to

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the amount of costs. See REWANE V OKOTIE EBOH

(1960) SCNLR 461 and LAYINKA V MAKINDE (2002)

5 SC (pt 1) 109 at 120. On the other hand, if the award is

made against established principles, it will be set aside by

an appellate Court. See AGIDIGBI V AGIDIGBI (1996)6

NWLR (pt 454) 300.

In the instant case, the appellant resorted to self help in

evicting the 1st respondent even when Exhibit A created a

valid tenancy between the 2nd respondent and the 1st

respondent. It was based on Exhibits B and C that the trial

Court found the 2nd respondent liable to the 1st

respondent but because it was the appellant (3rd party)

who after leasing his property to the 2nd respondent

intermeddled in the same property and caused all the

damages, the trial Court ordered all the awards made in

favour of the 1st respondent against the 2nd respondent to

be exacted from the 3rd party. Consequently, the costs

awarded by the trial Court were based wholly on the

established principles and there is therefore, no

justification in interfering with the said award by this

Court.

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ISSUE FOUR

Whether the appellant is liable to the 2nd respondent

in trespass considering the facts and circumstances

in this case.

The appellant’s contention here is predicated on his

previous argument to the effect that the 2nd respondent

cannot by merely paying money given to him by the

Chinese people become a tenant in law when throughout

the transaction he purports to act for Chinese people. It

was therefore submitted on behalf of the appellant that the

tenancy thereby created vide Exhibits F & L was for two

years. And the Chinese people who were the appellant’s

tenant after relocating to Port Harcourt, they were deemed

to have surrendered the property to the appellant. That

where a tenant has abandoned the premises, the landlord is

entitled to retake or re-enter them without instituting any

legal proceedings for possession. He referred to

BANKOLE V AZEEZ (1978) 1 CCHCJ79.

The trial Court had found and I totally agree that the only

agreement between the appellant and the 2nd respondent

was as shown in Exhibits F & L which was for a duration of

two years. It is also in evidence that the full rent of

N800,000.00 was outstanding when the Chinese people

left

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as they stayed in the house for only two weeks. When cross-

examined DW2 said at pages 197-198 that:-

“3rd party gave defendant permission to put in

another tenant after the Chinese people left”.

Considering the facts and circumstances in this case, the

questions begging for answers are who was in occupation

and who was the trespasser? A tenant in occupation can

sue but not the landlord except in cases of injury to the

reversion. This is where the trespass has caused a

permanent injury to the land affecting the value of the

hereditament. Then, he may sue for injury to his interest

without waiting until his future estate falls into possession.

See SOLEH BONEH V AYODELE (1989) 2 SC (pt 1)

708 at 117.

A landlord has not the right to invade premises in the

occupation of a tenant and cast his goods and belongings

away even for safe-keeping without his consent. Whereas in

the present case, a landlord unilaterally enters into the

premises of his tenant and takes possession of the property

or goods of the tenant; he has committed an act of trespass.

In the case of NATIONAL SALT COMPANY

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OF NIGERIA LTD V INNIS–PALMER (1992) 1 NWLR

(pt 218) 422 at 426, it was held that everybody is

forbidden to take possession or repossession of a premises

by self-help, force, strong hand or with a multitude of

people. Similarly, everyone entitled to possession or

repossession of premises can only do so by due process of

law. Thus, no one must take law into his hands and

everyone must apply to the Court for possession and act on

the authority of the Court. The appellant was rightly held

liable to the 2nd respondent in trespass.

ISSUE FIVE

Whether the appellant was not entitled to the reliefs

set out in his counter-claim against the 1st and 2nd

respondents jointly and severally.

Advancing argument on the above, learned appellant’s

counsel submitted that where the respondent failed to file a

counter-claim or cross -examine the counter-claimant on

material facts and documents tendered in evidence, the

counter-claim must succeed as there is nothing on the

other side to counter. He referred to OBI V OZOR

(1991)9 NWLR (pt 213) 94 at 109.

In further argument, learned counsel submitted that the

mere

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fact that the tenant was not at the inspection to ascertain

the extent of damage, is not enough to reject the valuation

report.

A counter-claim is to all intents and purposes, a separate

and independent action in its own right although a

defendant, for convenience and speed, usually joins it with

his defence. See OYEGBOLA V ESSO W. A. (1966)1 ALL

NLR 170. Where a defendant counter-claim against the

plaintiff, the plaintiff is duty bound to file a reply in defence

to counter-claim, otherwise the Court is entitled, in fact

obliged to assume that the plaintiff has no defence to the

counter-claim and only enter judgment for the defendant

accordingly. This is so because where a defendant pleads

certain facts in his pleading in support of his counter-claim,

with necessary particulars, but the plaintiff fails to reply to

them, no issue is raised on such defendant’s pleading and

the Court can proceed to give judgment on it without much

delay. See OGBONNA V AG. IMO STATE (1992)1

NWLR (pt 220) 647 at 675 and 692.

I have in this judgment reproduced the appellant’s counter-

claim before the trial Court which essentially was for the

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sums of N530,699.40 and N50,000.00 being cost of

damages shown on the valuation report, Exhibit N and for

being the money extorted by the police respectively. The

learned trial Court found in respect of the counter-

claimant’s claim for damages at page 232 of the record of

appeal as follows:-

“At paragraph 2:10 on page 2 of his affidavit of

defence against the claims of the defendant it is

stated that the inspection was done on Wednesday

19/11/2003. The evidence is that the claimants were

evicted from the property on 10/10/2003 by the 3rd

party. I was not told what happened to the property

between 10/10/2003 and 19/11/2003 when the

valuation was done. I am entitled to and I do hereby

find and hold that during that period the property was

in the custody of the 3rd party who caused the

ejection of the claimants from it.”

Still on the valuation Exhibit N learned trial judge said:-

“Again, Exhibit N is of little value as the tenant was

not present when the inspection was done. For the

above reasons this head of claim which involves the

claim of N15,000.00 for producing the report, fails

and is hereby dismissed.”

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Respecting the claim for N50,000.00 being cost of money

extorted from the 3rd party by the police at Zone 6 upon a

report ledged by the Defendant; Learned trial judge held:-

“Extortion of money by the police is a crime which

needs to be proved beyond reasonable doubt. Beyond

the assertion of the 3rd party, no evidence was

offered in proof of this criminal allegation. It fails for

lack of proof at all talk less of proof beyond doubt.”

I have stated that a counter-claim is a cross action and

where the plaintiff fails in proving his claim, the defendant

on proving his counter-claim may succeed. Whether in

respect of the claim or the counter-claim therefore, the

plaintiff or the defendant as the case may be must

discharge the burden of establishing his entitlement to the

reliefs he claims. See AKINBADE V BABATUNDE

(2018)7 NWLR (pt 1618) 366 at 395.

On the appellant’s contention that he was entitled to

judgment on the 1st respondent’s failure to file a counter to

the counter-claim and to cross examine the claimant,

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the law is indeed settled on that point. The failure of a

plaintiff to file a defence to a counter-claim may not be

disastrous for the plaintiff if he succeeds in his claim, as his

success may render useless the counter-claim depending on

the nature of the counter-claim.

In the instant case, the success of the 1st respondent as

claimant before the trial Court had rendered the

appellant’s counter-claim useless and also having failed to

establish his entitlements in the counter-claim, the trial

Court was right in dismissing the appellant’s counter-claim.

Consequently, I find no merit in this appeal which is hereby

dismissed. I make no order as to cost.

OBANDE FESTUS OGBUINYA J.C.A.: I had the singular

privilege to peruse, in advance, the leading judgment

delivered by my learned brother, Muhammed L. Shuaibu,

JCA. I concur, in toto, with the reasoning and conclusion in

it. I, too, penalise the appeal with a deserved dismissal.

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I abide by the consequential orders decreed in the leading

judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded

the privilege of reading the draft judgment just delivered

by my learned brother, MUHAMMED L. SHUAIBU and I

join him in dismissing the appeal. The judgment resolved

all the issues and highlighted the vices that plagued the

appeal.

I agree with the fuller reasoning in the judgment and abide

by the orders made therein.

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Appearances:

They were absent For Appellant(s)

They were absent For Respondent(s)

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