3PLR – N.I.D.B. V. ADVANCE BEVERAGES INDUSTRIES LTD

Published by Law Nigeria Admin at October 22, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

N.I.D.B

V. ADVANCE BEVERAGES INDUSTRIES LTD

IN THE COURT OF APPEAL

[LAGOS DIVISION]

3PLR/2001/232 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

ATINUKE OMOBONIKE IGE, JCA (Presided)

SULEIMAN GALADIMA, JCA

PIUS OLAYIWOLA ADEREMI JCA(Delivered the leading judgment)

BETWEEN

NIGERIAN INDUSTRIAL DEV. BANK LTD
O. ARABAMBI

(Carrying on business under the name and style of Oladele Arabambi and Co.)

AND

ADVANCE BEVERAGES INDUSTRIES LTD

REPRESENTATION

Mr. Yusuf Alli – S.A.N. with him Messrs K. K. Eleja and S. A. Oke for the appellants.

Mr. A. Awosanya for the respondent.

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

MAIN ISSUES

APPEAL – Award of damages by trial court – criteria for interfering with same by an appellate court.

APPEAL – Fresh issue on appeal – rule that an appellate court would not entertain same – exceptions thereto.

DAMAGES – “Strict proof” required in a claim for special damages – meaning of.

EVIDENCE – Pleadings – evidence led on facts not pleaded – effect of – duty of court not to act on same.

JURISDICTION – Fundamental nature of – source of court’s jurisdiction

PRACTICE AND PROCEDURE – Issues joined by parties in pleadings – duty of court to proceed to trial thereafter.

PRACTICE AND PROCEDURE – Pleadings – evidence led on unpleaded facts – effect of – duty of court not to act on same.

PRACTICE AND PROCEDURE – Statement of claim – whether supercedes the writ of summons – party claiming as “per” writ of summons – effect of.

PRACTICE AND PROCEDURE – Statement of claim – whether the writ of summons need to be amended before setting up a different allegation in the statement of claim.

MAIN JUDGMENT

PIUS OLAYIWOLA ADEREMI, J.C.A. (Delivered the following judgment):

In the Court below (High Court of Justice, Ikeja Judicial Division (Coram Olorunnibe J.) the respondent, as plaintiff in that court claimed against the appellants as defendants jointly and severally as follows:

(1) a declaration that:

(a) The purported appointment of the 1st defendant by the 2nd defendant as receiver of the plaintiff’s company by letter dated 23/9/88 confers no legal title on the 1st defendant to sell or otherwise dispose of the plaintiff and the machinery of the plaintiff.

(b) That the instrument of appointment dated 21st October, 1988 executed by the 2nd defendant in favour of the 1st defendant for the sale of the plaintiff’s property offends against the provisions of Land Use Instrument Registration Laws of Ogun State 1978 and/or Lagos State 1973 and is therefore null and void and of no effect whatsoever.

(2) That the 1st defendant by his purported appointment is not entitled or has no right and / or power to do such acts or take such steps that might amount to winding up to the plaintiff’s company.

(3) That the purported exercise of power of sale of plaintiff’s plant and machinery by the first defendant under the instrument aforesaid is null and void and of no effect.

(4) An order setting aside the purported sale of the plaintiff’s plant and machinery by the defendant and restoring the same to the plaintiff.

(5) In the alternative, the plaintiff claims the sum of N30,000,000.00 from the defendants jointly and severally as special and general damages for the unlawful sale of and interference with the plaintiff’s plants and machinery.

However, in its further amended statement of claim, the plaintiff/respondent only indorsed a claim for the sum of N30,000,000.00 (thirty million naira) as special and general damages for the unlawful sale of and interference with the plaintiff’s plants and machinery.

The plaintiff/respondent’s case as could be gleaned from its further amended statement of claim, is that in further realization of its business as manufacturer, bottler, distributor and seller of soft drinks and beverages it acquired a large tract of land at Ifo, Ogun State; bought plants and machinery which were installed at the factory site at Ifo, Ogun State. By a loan and mortgage agreement dated 25th May, 1983 which was tendered in evidence during the trial of the case as exhibit P1, the plaintiff/respondent took a loan of N2million from the 1st appellant. The said loan which was used to purchase the plants and machinery was secured by the property listed in exhibit P1. It was however unable to start production due to lack of working capital brought about, according to it, by naira devaluation and rise in foreign exchange rate. The plaintiff/respondent’s application for working capital was turned down by the 1st defendant/appellant. It further averred that whilst it was trying to procure working capital, the 1st defendant/appellant appointed the 2nd defendant/appellant as receiver of the plaintiff/respondent’s company. Relying on the said letter, the 2nd defendant/appellate started performing the duties of a receiver. It contended that the 2nd defendant/appellant, acting under the letter of appointment, was only entitled to manage the company and not to sell its plant and machinery. Indeed, it again averred, the 2nd defendant/appellant took steps and decisions translating into winding up of the plaintiff/respondent’s company. A proposal by the plaintiff/respondent to invite an investor to make available two million naira to reactivate the company was turned down by the 2nd defendant/appellant acting on the instructions of the 1st defendant/appellant. It averred that it suffered irreparable damage and loss of business as a result of the sale of the equipment and plants. Suffice it to say that the plaintiff/respondent, a private limited liability company has its office located at 71, Palm Avenue, Mushin-Lagos State. The 1st defendant/appellant in the joint amended statement of defence filed admitted all the averments relating to the raising of loan of two million naira by the plaintiff/respondent from it. When the loan secured became due for repayment and the plaintiff/respondent failed to honour its own obligation, in the exercise of its power under the mortgage deed-exhibit P1, it appointed the other assets of the plaintiff/respondent. The 2nd defendant/appellant exercised the powers conferred on him by the letter of appointment – the plants and machineries of the plaintiff/respondent were sold in the process, while the plaintiff/respondent called evidence to substantiate the averments in its pleadings, the defendants/appellants called no evidence. Sequel to the taking of the final addresses of counsel, the trial Judge (Olorunnibe J.) in a considered judgment found for the plaintiff/respondent against the 1st and 2nd defendants/appellants jointly and severally.

Being dissatisfied with the said judgment the defendants/appellants appealed therefrom. The notice of appeal carries twelve grounds. Distilled from the grounds of appeal are four issues for determination; and as set out in the appellants’ brief of argument, they are as follows:

(1) Whether having regard to the facts and circumstances of this case and the geographical location of the factory that was sold that led to this case the Lagos High Court had jurisdiction to determine the case.

(2) Whether the learned trial Judge was right to have agreed and relied on points and issues on which the parties did not join issues on their pleadings to decide the case against the appellants or whether he was right to set up a new case for the respondent.

(3) Whether the respondent proved its case as required by law to have been entitled to judgment and whether having abandoned all the declaratory reliefs sought, the trial court was still right to have awarded damages in favour of the respondent in the circumstances of this case.

(4) Whether the learned trial Judge was right to have awarded special damages in this case and whether he was right to have awarded general damages in addition to the special damages awarded.

The respondent, through its brief of argument, submitted five issues for determination, and they are as follows:

(1) What was the nature of the issue before the trial court for determination i.e. whether the issue related to land per se or a claim in damages arising from an act of the appellants.

(2) Whether, having regard to the respondent’s claim as contained in the further amended statement of claim pages 222 – 228 and its reply to the statement of defence pages 230 – 233, the Lagos High Court had jurisdiction to hear and determine this suit as it did.

(3) Whether having regard to the respondent’s reply to the statement of defence and the overwhelming uncontradicted and unchallenged evidence of the two respondent’s witnesses the learned trial Judge was right in deciding the issues in this suit in favour of the respondents.

(4) Whether in the absence of evidence contrary to that of the respondent as to its claim for special and general damages the respondent satisfied the required minimum of proof of its claim as to entitle it to judgment.

(5) Whether on the appellant’s own admission in its pleadings of the respondent’s contention of unlawful sale of its plants and machinery by the appellant the learned trial Judge was justified in giving the respondent full award of its claim for special damages based on the unchallenged and uncontradicted evidence of the respondent in support.

When this appeal came before us on 6th February, 2001 for argument, Mr. Yusuf Alli S.A.N learned counsel for the appellant referred us to and adopted the appellant’s brief of argument filed on 11th May, 1999. On issue number one raised in the appellants’ brief learned S.A.N. cited the cases of S.G.B. Ltd v. Aina (1999)9 NWLR (Pt. 619) 414 at 425 and Lanlehin v. Rufai (1959) 4 F.S.C. 184 at 186 in support of the arguments canvassed in their brief. He also alluded to the argument of the respondent in paragraph S. 07 of its brief which is to the effect that the receivership instrument under which the 2nd defendant/appellant exercised his right to sell the assets not having been registered in accordance with the Land Instrument Registration Law of Lagos State Cap 64 the receiver lacked the legal power to sell the property and submitted that in that a cross-appeal, this argument is not open to the respondent. It was also his view that the respondent can only counter the appellant’s submission on issue number three regarding the abandonment by the plaintiff/respondent of certain reliefs on the writ if cross-appeal has been entered and having not filed one, he reasoned that the submissions in reply thereto as contained in the respondent’s brief of argument are not open to the respondents; he called in aid the decision in Odigie v. Nigeria Paper Mills Ltd (1993)8 NWLR (Pt. 311) 338 at 340. He finally urged that the appeal be allowed. Mr. Awosanya, learned counsel for the respondent, for his part, adopted the respondent’s brief of argument filed on 21st March, 2000 and urged that the appeal be dismissed.

Arguing issue one in their brief of argument, the appellants submitted that from the facts of this case the forum convenience for adjudication on the respondent’s factory is the court at the lex situs of the factory and that is the High Court at Ogun State. They further submitted that the jurisdiction of any High Court is circumscribed and delimited within the land area of the state of its situation and the unlimited jurisdiction conferred on the State High Court by virtue of section 236 of the 1979 Constitution is also circumscribed by the territorial area of the location of the State High Court reliance was placed on Madukolu v. Nkemdilim (2001) 46 WRN 1 (1962) 2 SCNLR 341 A-G Anambra State v. A-G Federation (1993)6 NWLR (Pt. 302) 692 at 737 and section 234 of the 1979 Constitution as amended. They further contended that the nature and effect of the reliefs sought in this case point to the factory of plaintiff/respondent located at Ifo, Ogun State and since, according to them it is the claims of the plaintiff that do determine the jurisdiction of the court, they further reasoned that the Lagos State High Court would definitely have no jurisdiction to entertain the suit, calling in aid the decision in Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31. They urged that issue number one formulated by them should be resolved in their favour.

Issue one on the respondent’s brief dovetails into its issue two and so it has, rightly, taken the two together in the argument contained in its brief of argument it argued that from the nature of the claims formulated; the 2nd defendant/appellant’s the receiver – acts that culminated in this suit were predicated on the deed of appointment entered into by the two appellants, the 1st defendant/appellant has its office located within the jurisdiction of this court – the proper venue for bringing this action is the High Court located in Lagos State, in support, it cited cases such as Adesokan v. Adegorolu (1997) 48 LRCN 579, Savage v. Uwechia (1972) 3 S. C. 213 and Adeyemi v. Opeyori (supra). It urged that the two issues be resolved in favour of the respondent.

Issue one on the appellant’s brief and issues one and two on the respondent’s brief raise the crucial issue of jurisdiction. The question is so fundamental to adjudication that a court must have it to try the case first before it can exercise any form of judicial power in the matter. For a judgment given by a Judge with out jurisdiction is of no legal effect. And, generally jurisdiction belongs to the court where the act is done. Indeed, jurisdiction of the court is the very basis, foundation and the dominant instrument of access to court in adjudication under our civil jurisprudence. And as courts are creatures of statutes their jurisdiction is confined, limited and circumscribed by the statute creating them. But with respect to the superior courts it is said that nothing shall be intended to be out of their jurisdiction but that which specifically and clearly appears to be so from the wordings of the statutes creating them. However, on the contrary, with respect to the inferior courts, the likes of the Customary and Area Court, nothing shall be intended to be within the jurisdiction but that which is so expressly stated see African Newspapers of Nigeria Ltd & Ors. v. The Federal Republic of Nigeria (1985) 4. S.C. (Pt. 1) 76. Perhaps I should still add that jurisdiction is the authority by which a court has to decide matters that are presented before it for litigation. Although I have said above that it is the statute creating a court that confines, limits and circumscribes its jurisdiction; it has now become firmly established that it is the claim of the plaintiff that determines the jurisdiction of the court entertaining same see Chief Numogun Sam Adeyemi & Ors v. Emmanuel Opeyori (1976) 9 – 10 S. C. 31. Although the first set of reliefs sought in the instant case are mainly in the realm of declaration, I hasten to say that the exercise of a jurisdiction to make a declarative relief is not an exception to the general principle that where the constitution has declared that the courts cannot exercise jurisdiction any provision to the contrary is null and void and of no effect see Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166. Having stated the principles of law as they relate to jurisdiction, I shall now proceed to examine the reliefs sought to see whether they are, from their nature, those that the High Court of Lagos State can entertain. In the main relief, the plaintiff/respondent is seeking a declaratory order that the appointment by the 1st defendant/appellant of the 2nd defendant/appellant as a receiver of plaintiff/respondent’s company confers no legal title in the said 2nd defendant to sell or dispose of the assets of the plaintiff/respondent and that the instrument of the appointment, the 2nd defendant was lacking in legal power to do all the acts he has carried out in the exercise of any power or right under the instrument and to set aside the sale carried out. In the alternative, the plaintiff/respondent is claiming the sum of thirty million naira from the defendants/appellants jointly and severally for what it called the unlawful sale of and interference with the plaintiffs/respondent’s plants and machinery.

The instrument captioned “Loan and Mortgage Agreement” dated 25th of May, 1983 was entered into in Lagos between the plaintiff/respondent and the 1st defendant/appellant whose addresses and registered offices were given as 71 Palm Avenue, Mushin, Lagos and 63 – 71, Broad Street, Lagos respectively. Both offices are within the jurisdiction of the High Court of Lagos State. If I may say, the very basis of this action is the loan of two million naira which the 1st defendant/appellant granted the plaintiff/respondent at the request of the latter and which was evidenced by the loan and mortgage agreement entered into by both parties. It is the non-payment of the loan taken that has resulted in the 1st defendant/appellant, exercising whatever right it conceived under exhibit P appointing a receiver to realize the assets of the plaintiff/respondent the sale of the assets of the plaintiff/respondent and the alleged damages said to have been suffered by the plaintiff/respondent by the sale of the assets that informed this action. Issue number one on the respondent’s brief of argument is thus answered. I am of the view that by no strained construction of the documents at play in this case can it be correctly said that the suit is on the immovable property at Ifo, Ogun State. Our attention has been drawn to the decision of this court in SCB(Nig) Ltd v. Aina (1999)9 NWLR (Pt. 619) 414, in that case it was a land suit simpliciter. It is quite different from the present case which relates to the construction of a mortgage agreement. The point made in that case, in which I wrote the lead judgment, is that only the courts of the situation can make an effective order with regards to land. For all I have said above, I regret that I cannot agree with the submissions of the learned S.A.N. on issue one. On the contrary, I agree with the contention of the learned counsel for the respondent that the High Court of Lagos State has jurisdiction to entertain this suit.

I therefore resolve issue number one against the appellants. Issues numbers one and two on the respondent’s brief are resolved in favour of the plaintiff/respondent. I take issue two on the appellant’s brief together with issue three on the respondent’s brief. And I shall begin by saying that evidence led on issues not pleaded goes to no issue and it must not be acted upon by a court of law. Indeed, such evidence must be expunged from the records even if it was elicited under cross-examination see Usenfowokan v. Idowu & An. (1969) 1 All N.L.R. 125. I have carefully examined paragraphs 2, 3, 4, 5, 6 and 7 of the reply to the statement of defence of the defendants. The averments therein fully cover all the points raised in paragraph S. 01 on the appellant’s brief and which points were said, erroneously, not to have been pleaded. I need not set them out, but a careful reading of them clearly shows that they cover all these points alleged in the appellant’s brief as not pleaded. Issue two on the appellant’s brief is thus resolved against them. The trial Judge did not set up a new case for the plaintiff/respondent and he was right to have acted on the uncontradicted evidence based on the pleadings before him. I answer issue three on the respondent’s brief in the affirmative. Issues 3 and 4 on the appellants brief of argument can conveniently be taken along with issues 4 and 5 on the respondent’s brief. In summary, the two sets of issues pose the question: whether on the totality of the evidence led, the plaintiff/respondent could be said to have proved its case satisfactorily as to entitle it to judgment and whether having abandoned all the declaratory reliefs sought, the trial court was still right to have awarded damages in favour of the plaintiff/respondent in the circumstances of this case. Also posed is the question whether the trial Judge was right to have awarded general damages in addition to special damages. The relationship between a writ of summons and the statement of claim will be a convenient point to begin. The case takes its root from the mortgage agreement. I start by saying that it is trite law that a statement of claim supercedes the writ of summons. Thus where some special form of relief is claimed on the writ but is not contained in the statement of claim, that part found absent in the statement of claim is taken, in law, to have been abandoned. Also, where in the statement of claim a consequential relief is added which is not originally in the writ, such consequential relief will be deemed to be claimed before the court see (1) Olahan & Ors v. Lajoyetan & Ors. (1972) 6 S.C. 190 (2) Udechukwu v. Okwuka (1956) 1 F.S.C. 70 and (3) Otanioku v. Alli (1977) 11 – 12 S.C. 9. However, where in the closing paragraph of the statement of claim, a plaintiff claims thus:

“as per writ of summons”

That hallowed principle of law does not apply. For by that plea legal life is restored into all the reliefs contained in the writ of summons and they are deemed to be claimed In the Court through that statement of claim that contains the plea. See Keshinro v. Bakare & Ors (1967) 1 All N.L.R. 280. Again while it is the law that a statement of claim supercedes the writ of summons parties are not allowed to set up a totally different allegation in their statement of claim without seeking and obtaining leave to amend the writ of summons see Akpan & An. v. Uyo & An. (1986) 3 NWLR (Pt. 26) 63. In the further amended statement of claim, by the order of court made on 19th November, 1990, the plaintiff/respondent in the closing paragraph simply claimed N30 million as special and general damages. This relief does not reflect in full the reliefs contained on the amended writ of summons made by the order of court dated 18th September, 1989. The appellant reasoned that since the relief for damages is totally independent of reliefs. (a) (b) (c) contained in the amended writ of summons which by the further amended pleadings are deemed to be abandoned; there is no hanger on which the award of damages could be founded. There was no relief granted that affected the appointment of the receiver the 2nd appellant and the exercise of his power; the award for damages is therefore not proper in law, the decisions in Ode v. Ovien (1992) 7 NWLR (pt. 253) 309 and 323 and Akinbobola v. Pilsson Fisko & Ors (1991) 1 NWLR (Pt. 167) were prayed in support. On the issue of damages, the appellant contend that the special damages of N25,344,237.00 awarded have no justification in law as the respondent has failed to lead evidence in strict proof of same, the decision in Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747 was called in support. On its part, the respondent, in reply, argued that since the appellants failed to adduce evidence in support of the averments in their defence, that defence must be deemed to be abandoned and the evidence adduced by the respondent must be acted upon by the court, same not challenged or contradicted. The evidence led by the respondent in proof of the claim for special damages was uncontradicted and the court below was right to believe same and act on it accordingly, he relied on the decision in Oshinjirin & Ors v. Alhaji Elias & Ors (1970) All NLR 153. In reply to the allegation of abandoning the reliefs claimed in the amended writ of summons, the respondent contended that those reliefs have become obsolete to its claims as the machinery and plants had been sold. Its claim thereafter was for damages for unlawful sale of the plants and machinery, it contended. It is its further contention that since that issue was not taken at the court below it is not open to the appellant to raise that issue at this stage and that in any event the proper way to raise such objection had not been adopted. And referring to Oshinjinrin case and Kurubo & An. v. Zach-Mutison Nig. Ltd (1992) 5 NWLR (Pt. 239) 102, the court below was right to enter judgment for special damages and again while relying on the case of U.B.A. Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254 it maintained that the award of general damages by the lower court was justified.

I have examined the further amended statement of claim there is no gainsaying it that the declaratory reliefs indorsed on the amended writ of summons are found to be absent on the further amended statement of claim. But will the absence of these reliefs from the plaintiff/respondent’s further amended statement of claim mean the absence of an hanger on which to rest the award of damages? I shall answer this question anon. I shall now pause to attend to the point of law raised in the plaintiff/respondent’s brief that having not, raised the issue In the Court below it was improper for the appellant to now invite this court to consider this issue. By plethora of decided cases, the law has become firmly established that, generally, an appellate court will not allow an appellant to raise for the first time, a question, which was not raised or tried or considered by the trial court see Shonekan v. Smith (1967) 1 All N.L.R. 329. However, on a very careful scrutiny of the point intended to be taken on appeal, if satisfied, first that it has before it all the facts that touch upon the new contention, as completely as would have been the case were the controversy to have arisen at the trial court and secondly, no satisfactory explanation could have been offered by the party affected by the party whose conduct is impugned if an opportunity had been afforded him while he was in the witness box before the trial court, a court of appeal will unhesitatingly allow the question to be raised and the points taken see (1) Kukoyi & Ors v. Ladunni (1976) 11 S.C. 245, (2) Akpene v Baclays Bank of Nigeria Ltd & An. (1977) 1 S. C. 47 and (3) Fadiora & An. v. Gbadebo & An. (1978) 3 S.C. 219.

I have had a careful scrutiny of the point of law raised by the appellants and I am satisfied that it meets the conditions laid claim in the above cases. The relief sought in the further amended statement of claim is rooted in monetary damages. Can that relief stand? I ask again. My answer is in the affirmative; the substratum of the complaint of the plaintiff/respondent is that it’s chattels – plants and machinery – were unlawfully interfered with and sold by the defendants-/appellants. That, in essence, is the cause of action. I therefore resolve issue three on the appellant’s brief against by proferring an answer in the affirmative.

On the issue of award of special and general damages I wish to observe that the law is well established that an appellate court does not make practice of interfering with general damages awarded by the trial court unless it is satisfied that in the award of such damages the court below had allowed itself to be guided by wrong principles of law. The sum of N25, 344, 237.00 was awarded as special damages while the sum of N4,655,763.00 was the sum awarded as general damages. In making the award on special damages the learned trial Judge said inter alia:

“In this case, the evidence of the plaintiff has not been rebutted. I therefore accept the unchallenged evidence of the plaintiff……………………A sum of N25,344,237.00 is awarded against the defendants jointly and severally.”

It has been conceded that all the particulars of special damages were pleaded. The ipse dixit of PW1 – Mukaila Alade Oke – the plaintiff’s finance manager, in substantiating the claim for special damages, is thus.

“At the time of sale the value of bottling plants and machinery is N22,221,922.00……………..paid import duty on the plant and machinery which was N338,997.00. We incurred preliminary expenses which was N16,774.00. We bought two generators. The first is 12 KVA which cost N5,000.00 at that time. The second generator which is 500 KVA was N250,000.00. We had a big tank with the generator which cost us N12,500.00 we have another tank for diesel oil which cost us N12,500.00. We bought two water tanks which cost us the total sum of N25,000.00. We bought NEPA transformer for N37,440.00. We bought stock of raw materials totaling N842,828.00. We bought crown corks, bottle circles, concentrate, diesel oil 6000 litres, chemical and washing machine. We incurred operational expenses amounting to N1,541,346.00. We bought furniture and fittings totaling N16,065.00……… We had a balance of N9,325.00 credit.”

That is the evidence led in support of the special claims. As I have said, the defendants/appellant led no evidence to prove the averments in their pleadings. Once pleadings have been settled and issues joined, the only duty of a trial court of law is to proceed to trial of the issues see The Gold Coast & Asenantio Electrical Power Dev. Corp. Ltd v. The A.G. of the Gold Coast 3 WACA 215. And where a situation arises in which one of the parties fails or refuses to submit the issues raised in his pleadings for trial by leading evidence in their proof, the trial Judge, must unless there are legal reasons dictating to the contrary, resolve the case against the defaulting party. As I have said, the claim for N25,344,237.00 is for special damages which the law requires must be proved strictly. The term “strict proof” required in proof of special damages has been defined to mean no more than that evidence which shows the same particularity as is necessary for its pleadings. The losses which are exactly known or accurately determined before the trial must find firm support in the evidence led at the trial. In other words the evidence led in support of a claim in special damages must include certain facts which make calculation by the adversary and the court possible. Although no receipt was tendered in respect of any of the items claimed under special damages, that will not, in law deprive the plaintiff/respondent from getting that award, particularly in a situation where the ipse dixit of Oke-the Finance Manager has not been challenged or controverted. In this wise, I recall, for support, the dictum of Kayode Eso J.S.C. In the Supreme Court case of West African Shipping Agency (Nig) Ltd & Anor. v. Kalla (1978) 3 S.C. 21 a case similar to the one at hand, at page 3 the learned Justice said and I quote:

“In this case, the plaintiff’s evidence in regard to the purchase price of the beans is uncontroverted. He paid for them and he would know what they cost him. He has that peculiar knowledge. As evidence of what he paid for the beans, uncontroverted as it were, is sufficient proof of this claim for special damages and the learned trial Judge is perfectly justified in this award”

Guided by the principle enunciated in the Kalla case which is binding on this court I say that the award of N25,344,237.00 as special damages is on a firma terra. In awarding N4,655,763.00 as general damages, the learned trial Judge said.

“In this case, the plaintiff’s business was ruined.

It could not make profit. The proprietors lost their expectation of being gainfully employed. In my view the sum of N4,655,763.00 should be awarded as general damages. I award that sum against the defendants jointly and severally”

In the instant case it is not in doubt that the plaintiff/respondent is the body that is entitled to an immediate right to possession of the items listed under special damages. The defendants/appellants by their act, took the actual possession of them and later disposed of them. It is the law that generally, an appeal court is always reluctant to interfere with an award of general damages except where it is manifestly too high or manifestly too low or wrong principles of law had been followed in the award. See Dumez (Nig) Ltd v. Ogboli (1972) 1 All N.L.R. (Pt. 1) 241. In this case, the grouse of the plaintiff/respondent is that the defendants/appellants, without lawful justification, took its chattels out of it. The action is this type of case always results in a judgment for pecuniary damages only. And the judgment is often for a single sum of which the measure is generally the value of the chattel. That is the market value of the chattels it appears that by awarding the sum of N4,655,763.00 as general damages the trial Judge was fashioning an award to compensate the plaintiff/respondent for its inability to make profit as a result of the business which the trial Judge found to have been ruined and also for loss of expectation of gainful employment by the proprietors. Undoubtedly, this is a wrong principle to follow in the award of general damages. This court must therefore, intervene in this award see the Kalla (supra). The award for general damages is hereby set aside, consequently the first part of issue four on the appellants’ brief is answered in the affirmative; while the second part is answered in the negative; the trial Judge was right to award the sum of N25,344,237.00 as special damages; but wrong to award the sum of N4,655,763.00 as general damages. I answer issue four on the plaintiff/respondent’s brief in the same manner. Issue five on the respondent’s brief is answered in the affirmative.

In the final analysis, this appeal, save for the award of N4,655,763.00 which I hereby set aside, is unmeritorious and it is hereby dismissed for the avoidance of doubt, the award for N25,344,237.00 as special damages is hereby affirmed but the award of N4,655,763.00 as general damages is hereby set-aside. The respondent is entitled to the cost of this appeal which I assess in its favour at N5,000.00.

ATINUKE OMOBONIKE IGE, J.C.A: I have read in advance a copy of the judgment just read by my learned brother Aderemi, J.C.A.

I agree with his reasoning and conclusions. I also agree that this appeal fails save for the award of general damages which should be set aside as having been leased (sic) on a wrong principle of law in award of damages. I abide by the consequential orders of my learned brother including his order as to costs.

SULEIMAN GALADIMA, JCA: I have read in advance the judgment of my learned brother Aderemi, JC.A. which he has just delivered. I entirely agree with his reasoning and conclusion that this appeal is unmeritorious. It ought to be dismissed. However, I abide by the consequential orders made by my learned brother in this leading judgment.

Cases referred to in the judgment

A-G Anambra State v. A-G Federation (1993)6 NWLR (Pt. 302) 692.

Adesokan v. Adegorolu (1997) 48 LRCN 579.

Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31.

African Newspapers of Nigeria Ltd v. The Federal Republic of Nigeria (1985) 4. S.C. (Pt. 1) 76.

Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270.

Akpan v. Uyo (1986) 3 NWLR (Pt. 26) 63.

Akpene v Baclays Bank of Nigeria Ltd. (1977) 1 S. C. 47.

Dumez (Nig) Ltd v. Ogboli (1972) 1 All N.L.R. (Pt. 1) 241.

Fadiora v. Gbadebo (1978) 3 S.C. 219.

Keshinro v. Bakare (1967) 1 All NLR 280.

Kukoyi v. Ladunni (1976) 11 S.C. 245.

Kurubo v. Zach-Motison Nig. Ltd (1992) 5 NWLR (Pt. 239) 102.

Lanlehin v. Rufai (1959) 4 F.S.C. 184.

Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 2 SCNLR 341.

Nigeria Paper Mills Ltd (1993)8 NWLR (Pt. 311) 338.

Ode v. Ovien (1992) 7 NWLR (Pt. 253) 309.

Olahan v. Lajoyetan (1972) 6 S.C. 190.

Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747

Oshinjirum v. Elias (1970) 1 All NLR 153.

Otanioku v. Alli (1977) 11 – 12 S.C. 9.

S.G.B. Ltd v. Aina (1999)9 NWLR (Pt. 619) 414 .

Savage v. Uwechia (1972) 3 S. C. 213.

Shonekan v. Smith (1967) 1 All NLR. 329.

U.B.A. Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254.

Udechukwu v. Okwuka (1956) F.S.C. 70.

Usenfowokan v. Idowu (1969) 1 All NLR 125.

Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166.

Statutes referred to in the judgment

Land Use Instrument Laws of Ogun State 1978 and/or Lagos State 1973.

Constitution of the Federal Republic of Nigeria; 1979, Ss. 234 & 236