Meaning and Nature of Mense Profit #
JOINT PROJECT DEVT COMPANY & ORS v. AKINLADE (2014) LPELR-22559(CA)
“Mense profit is the rent and profit that a trespasser has or might have received or made during his occupation of the premises, and which he must pay over to the true owner as compensation for the tort he has committed – see Bolori V. Offorke (2010) LPELR – 3886 (CA) and Osawaru V. Ezeiruka (1978) NSCC (Vol. 11) 390, where the Supreme Court per Aniagolu, JSC, explained – “In a claim for mense profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages, which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the Defendant ceased to hold the premises as a tenant and became a trespasser …The word “mense” was derived from the Latin word “Medius” meaning middle, intervening or intermediate… And so a landlord in claiming for “mense profit” is claiming for the profits intermediate from the date the tenant ought to have given up possession. It is, therefore, damages for trespass the measure of which is the amount the tenant had been paying rent for the corresponding period when he was lawfully in occupation as a tenant.” Per AMINA ADAMU AUGIE, JCA (Pp 40 – 41 Paras D – C).
DEBS & ORS v. CENICO (NIG) LTD (1986) LPELR-934(SC)
“To begin with, it is necessary to have a clear idea of what mesne profits are. In Bramwell v. Bramwell (1942) 1 K.B. 370; (1942) 1 ALL ELR. 137 at p.13S, Goddard, L.J. described the expression; “mesne profits” as “only another term for damages for trespass arising from the particular relationship of landlord and tenant”. 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.” Per CHUKWUDIFU AKUNNE OPUTA, JSC (Pp 7 – 8 Paras F – A)
CHEMIRON (INTL) LTD v. STABILINI VISINONI LTD (2018) LPELR-44353(SC)
“Getting back to the mesne profit which the appellant admitted in its pleading paragraph 7 and by that admission, the respondent needed do nothing else in proof therefore. The implication is as captured by my learned brother Augie JCA (as he then was) in Agbamu v Ofili (2004) 5 NWLR (pt.867) 540 at 570 thus: “Mesne profits are therefore the profit accruing from the date the defendant ceases to hold the premises as a tenant to the date he gives up possession.” The implication of introducing the admission of mesne profit in the statement of Defence is that the appellant recognised that the tenancy had been validly terminated by effluxion of time and acknowledged that it was well reminded of that fact even through the appellant chose to hold over. Indeed what comes across is that weak assertion or struggle to impugn the legitimacy of those who effected the service in a way to continue to hold on to what legally the appellant has no ground to stay on. See Odutola v Paper Sack (Nig) Ltd (2006) 18 NWLR (Pt.1012) 470; Ekwegh v Ike (2005) ALL FWLR (Pt.260) 158.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 23 – 24 Paras B – A)
OTERI HOLDINGS LTD v. HERITAGE BANKING CO. LTD (2020) LPELR-50802(CA)
Principle – Difference between arrears of rent and mesne profit; when a landlord will be entitled to arrears of rent and when he will be entitled to mesne profit
“The Appellant counsel has argued that since the tenure of the Respondent has expired by effluxion of time, the Appellant is entitled to a claim of mesne profit on the property. The Respondent on the other hand is of the view in agreeing with the lower Court that it is a statutory tenant and therefore the Appellant is not entitled to mense profit. It is important at this stage to make a distinction between mesne profit and arrears of rent. In Osawaru vs. Ezeiruka (1978) LPELR-2791 (SC) relied on by the learned trial Judge, the apex Court made a distinction between mesne profit and arrears of rent in these words: “The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was a holding over which technically was a trespass but of a kind arising specially from particular relationship of landlord and tenant. In an arrears of rent claim, the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent, the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth’s Words and Phrases Legally Defined, 2nd Edition P. 251).” The meaning of mesne profit is brought out clearly in Ayinke vs. Lawal & Ors (1994) 7 NWLR (Pt.356) 263, where the apex Court held: “Mesne profits” has been described as the rents and profits which a tenant who holds over after the lawful termination or expiration of his tenancy or a trespasser has or might have received during his occupation of the land or premises in issue and which he is liable to pay as compensation to the person entitled to possession of such land or premises. As was explained by Goddard, L.J., the expression is another term for damages for trespass arising from the particular relationship of landlord and tenant. See Bramwell v. Bramwell (1942) 1 KB. 370. It is the name given for the intermediate profits or value for the use and occupation of land during the time it is held by one who is in wrongful possession or who has not agreed on any rents with the landlord, even though such an occupier cannot strictly speaking be described as a trespasser. They may therefore only be claimed as from the date when a tenant ceased to hold the demised premises as tenant and has become a trespasser. Indeed in Ahmed Debs and other v. Cenico Nigeria Limited., (1986) 3 NWLR (Part 32) 846 at 851 – 856, Oputa, J.S.C. aptly described the term as follows:- 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 starts 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 tenents interest in the land has come to an end, or his claim is joined with a claim for possession.” See Chemiron (Intl) Ltd vs. Stabilini Visinoni Ltd (2018) LPELR 44353. The contractual tenancy of the Respondent expired by effluxion of time on 28/2/2005 and in line with clause 8, there was an automatic renewal until 31/2/2010. From the evidence before the Court, the Respondent did not pay for the rent for the period of automatic renewal. The Appellant for the period of 28/2/2005 to 28/2/2010 is entitled to arrears of rent as the Respondent was in lawful occupation as a tenant but did not pay rent. However from February 2010 to when possession was taken on28/2/2012, the Appellant is entitled to mesne profit. I make bold to say that the Appellant need not serve the Respondent with a notice to quit but a seven days notice of owners intention to apply to Court to recover possession which the lower Court rightly held in my view to have been issued sometime in September 2011. On this I will refer to the case of Ajayi vs. Harry (2014) LPELR-24127 (CA) where this Court held: “Indeed, the legal position of a tenant in a fixed tenancy has been settled by the Supreme Court in the case ODUTOLA v. PAPERSACK SUPRA at page 470 and it was reiterated in the case of HILDA JOSEF v. CHIEF A.S. ADOLE (2010) LPELR 4367 (CA) thus: “The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until it is determined by a notice to quit”. See NWEKE v. IBE (1974) 46 CSLR 54 and ONWUAGHAMBA EZENWA v. OPARA OKO & ORS (1999) 14 NWLR pt 637 95 at 197″. The position is that all the Landlord for a fixed term tenancy as in this case, needs to do is to serve on the tenant a seven days notice of owner’s intention to apply to Court to recover possession. This notice was served in this case and I agree with trial Court that it is valid and effective.” This view also is buttressed by the fact that despite the fact that the contractual tenancy had expired on 28/2/2005 and renewal expired on 28/2/2010, the Respondent made an offer for further lease by negotiating via Exhibit C and C1 but it did not get to the contract stage. Between 28/2/2005 and 28/2/2010 the Respondent is a tenant and therefore the Appellant is entitled to arrears of rent but from 28/2/2010 to 28/2/2012 when possession was taken, the Appellant is entitled to mesne profit as there was no agreement as to the extension of the lease and so the Respondent was a trespasser from 28/2/2010 to 28/2/2012. In Abeke vs. Odunsi & Anor (2013) LPELR-20640 (SC), the Supreme Court held: “Generally, a claim for mesne profits is based on trespass by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant it can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser.” Similarly, in Consolidated Tin Mines Ltd & Anor vs. Mangu (2017) LPELR-43297 (CA), this Court per Abiru, JCA held: “This Court must say that while it agrees with the lower Court that with the expiration of re-granted certificate of occupancy the relation of grantor and grantee between the Plateau State Government and the first Appellant ended, it is not correct that the Appellants ceased to have any title to the land in dispute. The position of the Appellants on the land is akin to that of a lessee who holds over after the expiration of his lease. The law is that by holding over and retaining possession of the land in dispute after the expiration of the tenure of the certificate of occupancy without the Plateau State Government assenting or dissenting to a further grant, the Appellants became grantees at sufferance because they came into possession of the land lawfully in the first place. This new right which enures to the Appellants by operation of possessory law is quite distinct from rights obtained by virtue of the certificate of occupancy and this right persists against the whole world until the Plateau State Government recovers possession from the Appellants in the manner authorized by law, by suing for possession in Court -Okoye vs Dumez (Nig) Ltd (1985) 1 NWLR (pt 4) 783, Ude vs Nwara (1993) 2 NWLR (Pt 278) 638, Obioha vs Dafe (1994)2 NWLR (Pt 325) 157, Ezenwa Vs Oko (1999) 14 NWLR (Pt 637) 95, Briggs Vs The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (Pt 938) 59. This point was explained by Iguh, JSC in Ogualaji Vs Attorney General, Rivers State (1997) 6 NWLR (PT 508) 209 at pages 233-234 H-F thus: “Secondly, while the appellant under the said State Lands Law was entitled to a further use and possession of the demised property for three months after the expiration of his lease, he remained, at common law, a tenant at sufferance of the property in dispute until he was lawfully ejected or sued for possession by the lessor. This is because, where a tenant, having entered the demised premises lawfully or under a valid tenancy in the first place, holds the same over at the expiration of the lease and remains in possession thereof without the landlord’s assent or dissent, he automatically becomes a tenant at sufferance… This class of lease or tenancy arises only by operation of law and not by express grant for it assumes an absence of an agreement between the lessor or landlord of the one part, and the lessee or tenant of the other part… It is nonetheless well recognized in law as a special class of tenancy or leasehold, enjoying as it were, its attendant rights and privileges and terminable by the lessor or landlord by the ejection of the lessee or tenant by the due process of law. This generally takes the form of a Court action against such lessee or tenant for possession of the demised premises.” Thus, by retaining possession of the land in dispute after the expiration of the certificate of occupancy, the Appellants acquired an equitable interest in the land in the terms of the expired certificate of occupancy and which is entitled to the protection of the law and is enforceable against the whole would, except the grantor, the Plateau State Government. Therefore, notwithstanding the expiration of the tenure of their certificate of occupancy on the land in dispute, the Appellants still possessed a right to the land which is enforceable against the Respondent. This Court finds that the Appellants proved a better title to the land than the Respondent.” Per EBIOWEI TOBI, JCA (Pp 48 – 57 Paras D – C)
