ESSIEN v. SAMUEL & ORS (2020)

ESSIEN v. SAMUEL & ORS

(2020)LCN/14039(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/106/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OBONG COSMOS M. ESSIEN (State Secretary, NUP (For Himself And As Representing The Akwa Ibom State Council Of Nigeria Union Of Pensioners) APPELANT(S)

And

COMRADE G. E. SAMUEL 2. COMRADE(PRINCE) BASSEY T. ANTAI 3. COMRADE (MRS) UMO W. IDEM 4. COMRADE B. E. INYANG 5. COMRADE S.E. AKPAN RESPONDENT(S)

RATIO

DEFINITION OF A “CONTRADICTION”

A contradiction was defined in the case of IKPA VS. STATE (2017) LPELR-42590 (SC) wherein the Court described the contradiction and its effect on the case of a party, it said thus:
“The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is pretty well settled. It is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point – Kalu v. State (1988) 3 NSCC 1. Thus, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the prosecution’s case. The word “contradiction” comes from two Latin words – contra meaning opposite, and dicere, which means to say. So, to contradict is to speak or affirm the contrary, and a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts; not necessarily when there are minor discrepancies in the details between them. As Nnaemeka-Agu, JSC, said in Ogoala V. State (supra) – “contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend on the person’s astuteness and capacity for observing meticulous detail” – see Akpan v. State (1991) 3 NWLR (Pt. 182) 646 SC, Dagayya V. State (2006) 7 NWLR (Pt. 980) 637 SC and Ochemaje V State (2008) 15 NWLR (Pt. | 109) 57, where in Tobi, JSC, explained – Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. PER NIMPAR, J.C.A.

WHETHER OR NOT A DECLARATORY RELIEF CAN BE GRANTED ON AN ADMISSION

A declaratory relief cannot be granted even on an admission, the Claimant must present cogent evidence, See AKANINWO & ORS. VS. NSIRIM & ORS (2008) LPLER-321 (SC) and KWAJAFFA & ORS. VS. B.O.N (2004) LPELR-1727(SC) which held thus:
“…the law correctly in my view, is that a declaratory relief cannot be granted merely on default of defence or even on admission.” Per MUSDAPHER, J. S .C . PER NIMPAR, J.C.A.

WHETHER OR NOT A DECLARATORY RELIEF IS A DISCRETIONARY RELIEF

A declaratory judgment is also discretionary. It is the form of judgment which should be granted only in circumstances in which the Court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. See Egbunike vs. Muonweokwu (1962) All NLR 46; (1962) 1 SCNLR 97. A plaintiff who seeks a declaratory relief must show that he has an interest or right which forms the foundation for that right. The plaintiff must establish a right in relation to which the declaration can be made. See Chukwumah vs. Shell (1993) 4 NWLR (Pt. 289) 512, (1993) 4 SCNJ 1 at 42; I.T.I. vs. Aderemi (1999) 6 SCNJ 46 at 73; (1999) 8 NWLR (Pt. 614) 268.” Per MUSDAPHER, J. S. C. PER NIMPAR, J.C.A.

DEFINITION OF “SPECIAL DAMAGES”

Special damages are such which the law will not presume to flow from the nature of the act complained of or breach of duty of the other party, as a matter of course. Special damages are exceptional in nature and connote specific items of loss which a Plaintiff alleges are the result or consequence of the Defendant’s act or breach of duty”. See UBA PLC VS. OGUNDOKUN (2009) 6 NWLR (PT. 1138) 431 @ 489. IN OCFS LTD. VS. OGUNLEYE (2008) ALL FWLR (PT. 437) P, 48 @ 64.
The Claimant must also present cogent evidence in support of the pleadings in support of the special damages. See B.B. APUGO & SONS LTD. VS. OHMB (2016) LPELR- 40598 (SC) which held thus:
“The law is trite that special damages must be strictly proved by the person who claims to be entitled to them. The nature of the proof depends on the circumstances of each case. See Okunzua vs. Amosu (1992) 6 NWLR (Pt. 248) 416 @ 432 E-G. See also: Oshinjinrin & Ors. vs. Elias & Ors. (1970) 1 ALL NLR 151 @ 156, where it was held inter alia, that a person claiming special damages must establish his entitlement to the particular type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.” Per KEKERE-EKUN, J. S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU

Furthermore, the Court cannot suo motu raise an issue and resolve it without calling on counsel to address the Court before resolution. See TINUBU VS. I. M. B SECURITIES PLC (2001) LPLER-32448 (SC) which held:
“When a Court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer prejudice as a result of the point raised suo motu. See Odiase vs. Agho (1972) 1 All N.L.R. (Pt. 1) 170; Ajao vs. Ashiru (1973) 11 S.C. 23, Atanda vs. Akanmi (1974) 3 S.C. 109; Adegoke vs. Adibi (1992) 5 N.W.L.R. (Pt. 242) 410. Accordingly, on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without giving the parties an opportunity to be heard.” See OKAFOR VS. NNAIFE (1973) 3 E.C.S.L.R. 261, UGO VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566 AT 578. If it does so, it will be in breach of the parties’ right to fair hearing. SEE OJE VS. BABALOLA (1991) 4 NWLR (PT. 185) 267 AT 280.” PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice of Akwa Ibom State delivered on the 10th of August 2017 wherein the Court below entered judgment in favour of the Respondents and dissatisfied with the decision, the Appellant filed an Amended Notice of Appeal on the 18th March, 2019 setting out 7 grounds of appeal.

Facts relevant to this Appeal are amenable to brief summary. The Respondents as caretaker committee members were dissolved and aggrieved by the said action, initiated an action before the Court below seeking some declarations and some orders. Upon a full trial, the Court below relied heavily on the judgment of another judge of the same jurisdiction in suit NO. HU/285/2012 and entered judgment for the Respondents thus this Appeal.

The Appellant Brief settled by EKPA B. EKPA ESQ., filed on the 20th April, 2018 and deemed on the 26th March, 2019 distilled 4 issues for determination as follows:
1. Whether the judgment of Honourable Justice Pius P. Idiong in suit No.HU/285/2012 that the “State Executive Committee of the State Council of the Nigeria

Union of Pensioners (NUP) was unconstitutional, its tenure having lapsed on the 20/2/2011 clogged or stopped the dissolution of the Respondents by the State Council of the Union on 14th August, 2012 and whether by that judgment it was the State Council of the Union that was dissolved.
2. Whether the Hon. Trial Judge was right when he granted the Respondents reliefs Nos. 1,2,3,4,5,6,7,8,9, by relying on the judgment of Hon. Justice P. Idiong in suit No. HU/285/2012.
3. Whether the Honourable Trial Judge was right when he suo moto raised the non-competence of the Appellant’s Counter-Claim and abuse of Court process in relation to Suit No. HU/285/2012 and No. HU/46/2012, letter and petition without giving the Appellant’s Counsel the opportunity to address him thereto.
4. Whether the judgment is against the weight of evidence.

The Respondents’ Brief settled by A. E. AKPANUMO ESQ., filed on the 11th April, 2019 formulated 3 issues for determination as follows:
i. Whether the learned Trial Judge was right in holding that the dissolution of the Plaintiffs/Respondents by the Defendant/ Appellant on 14th August, 2012 by

Exhibit B during the illegal tenure of the Akwa Ibom State Council of Nigeria Union of Pensioners led by Obong Cletus. T Uko and Obong M. Essien (the latter being the Defendant/Appellant herein) was unconstitutional, wrongful, null and void and of no effect whatsoever and therefore the Plaintiffs/Respondents are the current legitimate Caretaker Committee members of Uyo Branch of the Nigerian Union of Pensioners Akwa Ibom sate and are entitled to their Reliefs Nos (1) – (9).
ii. Whether the Defendant/Appellant is entitled to his sham counter-claim.
iii. Whether the Appeal should be dismissed for want of merit.

The Appellant filed a Reply Brief on the 25th April, 2019 wherein he responded to the submissions of the Respondents.

After a careful review of the Notice of Appeal, the Record of Appeal and the Briefs of the Respective counsel, the Court is inclined to adopting the issues formulated by the Appellant for resolution in this Appeal. It is expedient to do so in order to completely resolve all the issues raised by the Appellant in this Appeal and it shall be done seamlessly.

The Appellant on issue one submitted that the decision in

Suit No HU/285/2012 and the judgment in Suit No. HU/46/2015 from which this Appeal arose was wrongfully applied and relied upon by the Hon. Learned trial Judge.

He submitted that the said Judgment in respect of Suit No HU/285/2012 at page 60 and 408 of the record of Appeal, the relief in the suit was for “declaration that the Akwa Ibom State Council of the NUP constituted on 20th February, 2007 was dissolved on 20th February, 2011 by operation of the law and all Acts, directives of meetings conducted by the State Council officers elected on 20th February, 2011 are unconstitutional, null and void” and this is not one of the reliefs in Suit NO HU/46/2015(now on Appeal) sought by the Respondents.

Furthermore the Appellant submitted that the Respondents failed woefully to lead evidence on how the relief above quoted in EXHIBIT C (Judgment in suit NO HU/285/2012) prevented their dissolution as members of Uyo caretaker of the Union by the State Council on the 14/08/2012, he cited the case of OMISORE & ANOR vs. AREGBOSOLA (2015)246 LRCN 44 @ 78. Learned counsel submitted that the Respondents did not discharge this burden of proof placed on

them at the lower Court. He referred to the case of DUDU ADDAH & 7 ORS. vs. HASSAN SAHI UBANDAWAKI (2015) 241 LRCN 1.

The Appellant further submitted that it was the State Executive Committee that was dissolved because of an unconstitutional election conducted on 23rd February, 2011 instead of 20th February, 2011, the State Council Union which was not dissolved was right and constitutionally empowered to dissolve the Respondents on 14th August, 2012 for committing various act of insubordination, indiscipline, financial misappropriation and tenure elongation of 4 years and 8 months instead of 4 years which was in accordance with the provisions of Rule 13(ii) vii (b) and viii (a) of the NUP constitution, he referred to page156-163 of the Record of Appeal.

The Appellant added that the dissolution of the State Executive Committee in the circumstance in suit HU/285/2012, was in total agreement with the position of the Respondent when the Appellant’s counsel cross-examined PW1 and he admitted that election of the State Executive committee of NUP was annulled on 28th November, 2011 and that the State Executive Committee was different from the

State Council otherwise called state executive council. That this answer confirmed the position of the Appellant in this case and strengthen his case that the State Council of the Union was not dissolved by the Court. He cited again the case ofSENATOR A. OMISORE & AMOR VS. AREGBOSOLA (2015) 246 LRCN 44. He urged the Court to find in favour of the Appellant under issue one.

The Appellant on issue 2 submitted that by granting the Respondents reliefs NO 1-8, the Hon. Judge at page 409 of the Record of Appeal. The Appellant should pay the Respondents as per their pleadings and evidence in monetary terms, for 2012-2015, 1-4th quarters administrative funds allocation, quarterly allocations, bonuses, allowances and check-off dues as their personal entitlements.

It is the Appellant’s submission that the dissolution of the Respondents on 14th August, 2012 by the State Council and reconstitution of a new one with members entitled to the payments demanded by the Respondents clearly made the granting of relief 1-2 by the trial Court unrealistic. He submitted that since members of the new Caretaker Committee Members were still legitimately qualified

and entitled to those allowances on taking over as Uyo Caretaker Committee Members from the Respondents.

The Appellant also submitted that reliefs No 3-8 are in realm of Special Damages and ought to have been viewed by the trial Court as such and even if it were General Damages, they should have been quantified as to the sum of money in contention by the Respondents.

However, the Appellant further strongly contended that reliefs 1-8 are Special Damages with specific heads/sub-heads and with special nomenclature but the Respondents did not give their particulars and therefore the Trial Judge could have not granted same to the Respondents, he cited the case of CAMEROON AIRLINES VS. MR. MIKE E. OTUTUIZU (2011) 195 LRCN 198 andCBN & ORS vs. AITE OKOJIE (2015)250 LRCN 44.

The Appellant further argued that EXHIBIT A (Constitution and Code of Conduct of NUP) tendered and Rule 20(b) relied upon by the Respondents provides thus:
“All deductions from pensions under the check off dues system shall be made payable by cross cheques to the National Secretariat of the Union through the General Secretary”.

The Appellant submitted

that the provision says payment should be to the National Secretariat and not to the Respondents. Furthermore, that the grant of relief number 9 (page 11 and 25 of the record of Appeal whether interim or interlocutory) was not tenable, that in the circumstances of this case as the Respondents were constitutionally dissolved by the State Council of the Union on 14th August, 2012. He cited ABOSELDEHYDE LABORATORIES PLC. VS. UNION MERCHANT BANK & ANOR. (2013)224 LRCN 199. Appellant urged the Court to find for the Appellant.

Continuing his submissions and on issue three, the Appellant submitted that the Trial Judge at page at page 412-415 of the Record of Appeal castigated the Appellant for his claims at pages 231-234, his amended statement of claim and his deposition. He argued that the Respondents in their reply to Appellant’s counter claim simply denied the claim at pages 306 and did not strictly admit or deny the claims of the Appellant. The Trial Judge raised the defense suo moto on their behalf and descended into the arena, raised a defence for the Respondents including the issue of non-payment of fees for filling process. He cited DUDU ADDAH & 7 ORS. VS. HASSAN SANI UBANDAWAKI (supra)

and VICTINO FIXED ODDS LIMITED vs. JOSEPH OJO (supra).

Continuing, Appellant submitted that the Trial Judge at page 392 of the Record of Appeal raised an issue suo moto, called on counsel to address the Court and adjourned the case to 3rd August, 2017, surprisingly, it is not on record that Counsel addressed the Court before judgment (referred to page 394 of the Record of Appeal) instead the Trial Judge referred to a letter in respect of Suit No. HU/46/2015 now on Appeal in which he was accused of bias, incompetent, mischievous and trickiest (page 394 of the record) which he ignored and went ahead to deliver the judgment without mentioning the Author of the said letter and petition, these are also not part of the Record of Appeal. It is the Appellant’s submission that by raising these issues, it was obligatory that both counsel in the matter should address the Court to assist in arriving at the decision in the case.

On issue four the Appellant urged the Court to re-assess the pleadings and evidence to consider which case weighs heavier on the scale of justice in view of the burden of proof placed

on the Plaintiffs now Respondents, citing KIM vs. KEMFO (2008) 4 NWLR (Pt.202) 147 @ 156 ratio 10 to contend that the Appellant stated that the Trial Judge instead of examining the contentions of the parties to arrive at its decision, relied on the reliefs in suit No. HU/285/2012 while misapplying the judgment/decision of the Hon. Justice Pius P Obong in the said suit. The Appellant submitted that the Respondent present evidence to discharge the legal and evidential burden placed on them and the Trial Judge devoted more of his attention in the judgment to counter claim instead of properly and meticulously evaluating evidence of the parties before deciding for the Plaintiffs now Respondent. He cited NNSEMEKA OKOYE & 6 ORS. VS. OGUGUA NWANKWO (2015) 239 LRCN 127.

He urged the Court to allow the Appeal on this ground and set aside the judgment of the lower Court.

RESPONDENTS’ SUBMISSIONS.
On issue one, the Respondent submitted that the learned Trial Judge was perfectly right in holding that the purported dissolution of the Respondents by the Appellant on the 14th August, 2012 through Exhibit B during the illegal tenure of the Akwa Ibom

State Council of Nigeria Union of Pensioners led by Obong Cletus T. Uko and Obong Cosmas M.Essien was unconstitutional, wrongful, null and void and of no effect whatsoever. And therefore, the Respondent are current legitimate caretaker committee members of Uyo Local Branch of the Nigeria Union of pensioners Akwa Ibom State and are entitled to relief NO.1-9. They urge to affirm the judgment of the Trial Judge and dismiss this Appeal in its entirety for want of merit.

They referred to pages 467-468 of the Record of the Appeal particularly at page 20 paragraph 4 (1-3) at page 21 of Exhibit C which they said that clearly spelt out in black and white, that it was the Akwa Ibom State Council of the N.U.P that was dissolved on grounds of unconstitutionality and illegality of its tenure from 23rd February, 2011 to 28th November, 2012 and thereafter set up a fresh Interim committee to conduct fresh elections for new officers of the said Akwa Ibom Council in accordance with the N.U.P Constitution.

The Respondents contended that a Court of law cannot give a party what he has not asked for, he cited the case of SUARA YUSUF vs. OLADIPO OYETUNDE & 9 ORS

(1998) 10 SCNJ 1. They argued that the dissolution of the Akwa Ibom State Executive Committee was never prayed for by the Plaintiffs in the said Suit No HU/258/2012 (EXHIBIT C) and that there is no way His Lordship Idiong J. could have dissolved the State Executive Committee which the Plaintiff never prayed the Court to grant.

Furthermore, the Respondents submitted that the decision of a Court of competent jurisdiction remains binding unless set aside and that the decision in suit No. HU/285/2012(EXHIBIT C page 407-409) remains binding and unequivocally renders the purported dissolution of Plaintiffs/Respondents by the Defendant/Appellant and all other actions, activities and directly connected therewith null and void ab initio, unlawful, unconstitutional, wrongful and of no effect whatsoever. They relied on Section 128(1) of the Evidence 2011 and JESSICA TRADING CO. LTD. vs. BENDEL INSURANCE CO. LTD. (1996)10 NWLR (Pt. 476) 1 S.C and LAYADE vs. PANALPINA WORLD TRANSPORT (NIG.) LTD. (1996) 6 NWLR (Pt.456)544 S.C’

The Respondent answered their issue two in the negative that the Appellant is not entitled to his reliefs in counter- claim. The

Respondents urged the Court to affirm the Judgment of learned trial Judge and dismiss this Appeal in it’s entirely for want of merit. They argued that the counter claim of the Appellant was totally baseless, incompetent and frivolous (page 351-353 of the record). Respondents went further to submit that the Appellant alleged that the Trial Judge raised the issue of non-competence of counter claim suo motu. The Respondent argued that the law is trite that parties are bound by their pleadings. They cannot be allowed to go outside their pleadings to establish their cases and address of counsel cannot take the place of evidence. The Respondent rely on ADEREMI vs. ADEDIRE (1966) NWLR 398 AND OSURIGWE vs. NWIHIM (1995) 3 NWLR (Pt.386) 752.

Respondents denied the allegation of defamation or any offence at all against the Appellant to warrant the award of any damages at all against them in favor of the Appellant. The Defendant did not plead and did not lead any legal evidence at all to prove these allegations in his sham claim. It is a trite law that he who assert must prove. He cited Section 131 of the Evidence Act 2011 and G & T INVEST. LTD. vs. WITT & BUSH LTD.

(2011) 8 NWLR (Pt. 1250) 500 contending the Defendant failed in his claim and is not entitled to relief.

Furthermore, on the issue of petition where the Appellant contended that the Trial judge ought to have called Counsel to address the Court before the judgment. They argued it did not occasion any miscarriage of justice because the lower Court Judge decided the case on its merit based on the facts before him and not on sentiments.

The Respondents submitted that there is no rule of law or practice that dictates or prescribes that a judgment is flawed if a vital issue in the case is left unresolved. The Respondent submitted that non-resolution of a vital issue in a case does not make the judgment flawed; a fortiori the non-resolution of these extraneous trivialities cannot annul this well considered Judgment, relied onAGU vs. NNADI (2002) 12 NSCQR 129. He submits further that it is a well-established rule of law that an Appeal cannot lie on a point that did not form part of the case argued and decided by the Court below, referred toVEEPEE vs. C.I.I (2008) 34 NSCQR 911 to urge the Court to hold and affirm the judgment of the learned

Trial Judge and dismiss this Appeal in its entirety.

In response to issue No. 4 raised in the Appellants brief, the Respondents disagreed and contended that the judgment is not against the weight of Evidence. They submitted that the Appellant’s argument is not sustainable and does not avail the Appellant. The Respondents submitted that the purported dissolution of the Respondent herein by the Appellant on 14th August, 2012 by Exhibit B was perpetrated during said illegal tenure and the learned trial Judge in the instant case HU/46/2015 under Appeal had no difficulty in declaring it as unconstitutional, wrongful, null and void and of no effect whatsoever. They contended that they are entitled to their relief Nos. 1-9.

The Respondent argued further that the findings of facts and conclusions should be based on evidence adduced before the Court and not on sentiments, speculations or possibilities. No Court of law is entitled to draw conclusion of a fact outside the available legal evidence before it. The appraisal of evidence and the ascription of probative values to evidence is the primary duty of a Trial Court, but not the Counsel. He cited the

case of IDIOK VS. THE STATE (2008) 34 NSCQR 831.

The Respondents on issue three submitted an answer to this issue in the affirmative and submit that the Appeal should be dismissed in its entirety for want of merit. They contended that one cannot put something on nothing and expect it to stand, citing the case of DAKAN VS. ASALU (2015) 13 NWLR (Pt 1475) 85. They urged the Court to dismiss this Appeal in its entirety with substantial costs.

APPELLANT’S REPLY BRIEF
The Appellant in response to the Brief of argument filed by the Respondents dated 8th day of April, 2019 and filed on the 11th day of April, 2019 the Appellant contended that the Respondents claim being declaratory (pages 13-15 of the record of Appeal), the burden is on them to prove that their dissolution coming after having over stayed their tenure for 4 years and 8 months instead of 4 years with the attendant infringement of the relevant provisions the Constitution and Code of Conduct of the Union was against the Law and that the Uyo Caretaker Committee of the N.U.P whose tenure lapsed was unlawfully dissolved, relied on AKINBADE & ANOR. VS. BABATUNDE & 9 ORS. (2018)

276 LRCN and NYESOM VS. PETERSIDE & 3 Ors. (2016) 255 LRCN 28.

The Appellant stress that the Judgment in suit No. HU/285/2012 declared the State Executive Committee of the N.U.P Akwa Ibom State a nullity and not the State Council of the Union which dissolved the Respondents on the 14th August, 2012 and that the Appellant who did so as erroneously contended by the Respondent.

The Appellant contended that the document tendered in evidence by the Appellant and admitted as Exhibit without any objection cannot at this stage be challenged. He cited OMEGA BANK NIGERIA PLC VS. O.B.C LIMITED (2005) 123 LRCN 34. Arguing further the Appellant stated that there is nothing on the Record of Appeal in the paragraphs and pages mentioned in paragraph 4.21 of the Respondents brief of argument concerning counter-claim thus confirming that the issue was raised suo moto by the Trial Judge in his judgment. That a judgment including this appeal must not introduce extraneous issues as done by the trial Judge because a Judgment must be confined with only the reliefs sought and evidence by the parties in the Trial Court.

The Appellant strongly contended that the Trial

Judge did not make proper appraisal of the facts and findings in arriving at Judgment thus being unfair to the Appellant, relied on MBANEFO vs. MOLOKWU (2014) 232 LRCN 1. The appellant finally urged the Court to find in favour of the Appellant and allow the Appeal.

RESOLUTION
The judgment Appealed against was contended to have been based on an earlier judgment of the coordinate Court delivered in suit No. HU/285/2012 delivered by Hon. Justice Pius P. Idiong on 28th November, 2012 and tendered as Exhibit C before the trial Court. The main relief in that suit was thus:
“A declaration that the Akwa Ibom State Council of the NUP constituted on 20th February, 2007 was dissolved on 20th February, 2011 by operation of law and all acts, directives or meeting conducted by the state council officers elected on 20th February, 2007 are unconstitutional, null and void”.

The Court in Exhibit C held concerning above relief declared that the tenure of the former Executive of the state council of the Nigerian Union of pensioners which was elected on 20th February, 2007 expired on 20th February, 2011 and whatever action the said committee took or

carried out after the said date of expiry becomes unconstitutional and therefore null and void. The said holding of the Court in exhibit clearly dissolved Akwa Ibom State Council and that consequently dissolve the tenure of the Appellant which was held to take effect from the date of the Judgment but specifically named to be 20th February, 2011 and the Judgment was delivered on the 28th November, 2012.

The trial Court herein in reliance on the said earlier Judgment held that the dissolution of the Respondents by the Appellant on the 14th August, 2012 was unconstitutional. The specific words used in Exhibit C are: “The Executive of State council.”

The Appellants made it quite clear that there are three levels of leadership in the state and they are:
i. State Executive Committee
ii. State Administrative Committee
iii. State Council

The same Exhibit C also stated as follows:
“An interim Executive Committee made up of the Appellant and one member each from the Plaintiffs and defendants in that case(3 persons) with the mandate to constitute a New State Executive Committee of the Union within 3 months.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The argument of the Appellant is that reference to the Executive of State Council couldn’t refer to State Council but to the State Executive Committee which Exhibit C also went on to direct on its reconstitution.

The Appellant also referred the Court to answers to cross examination of PW1 at page 377 of the Record said:
“The election of the State Executive Committee of NUP was annulled on 28th November, 2011…. And that State Executive Committee was different from the State Council otherwise called State Executive Council.”

If the Respondent’s witness agreed with the Appellant on which of the three bodies was actually affected with Exhibit C, could the trial Judge herein be correct? Furthermore, the Judgment in Exhibit C was delivered 28th November, 2012 while the action affected by the Judgment on Appeal was done before the judgment was delivered, did it have retrospective effect? The Trial Judge should have also made specific findings as to which of the three tiers of leadership was affected and not just to swallow it hook line and sinker. To even appreciate the order of dissolution made in Exhibit C one must

also look closely at the claim in Exhibit C. The basis of the dissolution was that it was done when the lifespan of the state Council had expired but PW1 told the Court it was not the state council but the State Executive Council. The Respondent cannot be blowing hot and cold. It cannot plead and seek to prove by Exhibit C that it was the State Council that was affected by Exhibit C and the evidence before the Court saying it was a different tier of leadership affected which is the State Executive Council. When the case of a party is contradictory, it defeats the claim in the suit. A contradiction was defined in the case of IKPA VS. STATE (2017) LPELR-42590 (SC) wherein the Court described the contradiction and its effect on the case of a party, it said thus:
“The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is pretty well settled. It is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point – Kalu v. State (1988) 3 NSCC 1. Thus, the law allows room for minor discrepancies in the evidence of witnesses, which

may not be fatal to the prosecution’s case. The word “contradiction” comes from two Latin words – contra meaning opposite, and dicere, which means to say. So, to contradict is to speak or affirm the contrary, and a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts; not necessarily when there are minor discrepancies in the details between them. As Nnaemeka-Agu, JSC, said in Ogoala V. State (supra) – “contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend on the person’s astuteness and capacity for observing meticulous detail” – see Akpan v. State (1991) 3 NWLR (Pt. 182) 646 SC, Dagayya V. State (2006) 7 NWLR (Pt. 980) 637 SC and Ochemaje V State (2008) 15 NWLR (Pt. | 109) 57, where in Tobi, JSC, explained – Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not

necessarily mean that the event they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in Union or Unison as to the happening of the event but gave different versions in respect of the peripheral surrounding the event. In our context, the event is the murder of Alhaji Bameyi and where PW1 and PW2 were on the day— The number of persons who participated in the murder and the date and manner of the arrest of the Appellant, are merely peripheral.— What has the date of arrest of the Appellant have to do with the act of murder committed by the Appellant In this case, I am tempted to ask and I will not resist – what has who handed the N50. 000.00 to the Appellant got to do with the offence with which he is charged What has the source of the money that he collected from PW2, which he insists was a loan, got to

do with it How will knowing the source of money alter the equation in his favour or exonerate him from the allegation These and many more unanswered questions arising from the catalog of contradictions/inconsistencies he enumerated, make it abundantly clear that the Court of Appeal was right that the alleged contradictions cannot be held to be material since they did not affect or disturb the Prosecution’s case that he did receive the said N50. 000, irrespective of who handed it to him.” Per AUGIE, J. S. C.

Exhibit C was tendered by the Respondents and PW1 who was called by the Respondents. The two pieces of evidence on the frontal issue of which tier of leadership was affected and which the orders sought to be established is contradictory. They assert different things which cannot stand as the Court cannot choose which piece of evidence to believe and which one to discard. The Court below could have done a proper evaluation to arrive at a finding that can be justified by the evidence before the Court. On the basis of this, the Judgment of the Trial Court cannot stand.

Furthermore, the Respondents sought for declaratory reliefs which means evidence

must be presented to enable the Court grant such reliefs, the evidence before the Court on which tier of leadership was dissolved by Exhibit C was not supported by evidence, the Court below cannot go into the reasoning of the Trial Court in Exhibit C but just be bound by the orders made in the Judgment. Juxtaposing the reliefs granted in Exhibit C and the evidence of PW1 before the Trial Court, it leaves a confused situation which should have been clarified by the Court below and this was not done. A declaratory relief cannot be granted even on an admission, the Claimant must present cogent evidence, See AKANINWO & ORS. VS. NSIRIM & ORS (2008) LPLER-321 (SC) and KWAJAFFA & ORS. VS. B.O.N (2004) LPELR-1727(SC) which held thus:
“…the law correctly in my view, is that a declaratory relief cannot be granted merely on default of defence or even on admission.” Per MUSDAPHER, J. S .C .
And furthermore, the issue was discussed extensively in the case of ALAO VS. AKANO (2005) LPLER-409 (SC) thus:
“It is of importance to bear in mind that the claims of the Appellant before the trial Court were essentially declaratory, hence the duty was on

him to succeed on the strength of his own case and not on the weakness of the defendant’s case. See Owoade vs. Omitola (1988) 2 NWLR (Pt. 77) 413. Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214. A declaratory judgment is also discretionary. It is the form of judgment which should be granted only in circumstances in which the Court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. See Egbunike vs. Muonweokwu (1962) All NLR 46; (1962) 1 SCNLR 97. A plaintiff who seeks a declaratory relief must show that he has an interest or right which forms the foundation for that right. The plaintiff must establish a right in relation to which the declaration can be made. See Chukwumah vs. Shell (1993) 4 NWLR (Pt. 289) 512, (1993) 4 SCNJ 1 at 42; I.T.I. vs. Aderemi (1999) 6 SCNJ 46 at 73; (1999) 8 NWLR (Pt. 614) 268.” Per MUSDAPHER, J. S. C

Can it then be said that the Respondents established by cogent evidence their entitlements to the reliefs granted by the Court below? Cogent evidence certainly cannot contemplate contradictory evidence which

means opposing one another. The apex Court defined cogent in the case of UGWU & ANOR. VS. ARARUME & ANOR. (2007) LPLER-24345 (SC) as follows:
“…the word cogent. Counsel for the 1st respondent lifted the definition of cogent from Chambers Dictionary, New Edition (1990) as “powerful; convincing”. He also lifted the definition of the word from Oxford Advanced Learners Dictionary of Current English, 6th edition, as “strongly and clearly expressed in a way that influences what people believe. I agree with the above definitions. Cogent, usually used in the context of reasons or arguments, tends to persuade or to produce belief. It must convince the person it is addressed. The reason or argument must be satisfactory to the person it is addressed.” Per TOBI, J.S.C.

The Respondents were not entitled to the declaratory reliefs made by the Trial Court. The Trial Court merely adopted declarations made in Exhibit C instead of evaluating the evidence before it to arrive at findings which should then be supported by Exhibit C.

With regards to the monetary claims, the law is trite that a claim of special damages must be specifically pleaded and

particularized, it was defined thus:
“Special damages have been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore they must be claimed specifically and proved strictly all the loses claimed on every item must have crystallized in terms and value before trials.”
Special damages are such which the law will not presume to flow from the nature of the act complained of or breach of duty of the other party, as a matter of course. Special damages are exceptional in nature and connote specific items of loss which a Plaintiff alleges are the result or consequence of the Defendant’s act or breach of duty”. See UBA PLC VS. OGUNDOKUN (2009) 6 NWLR (PT. 1138) 431 @ 489. IN OCFS LTD. VS. OGUNLEYE (2008) ALL FWLR (PT. 437) P, 48 @ 64.
The Claimant must also present cogent evidence in support of the pleadings in support of the special damages. See B.B. APUGO & SONS LTD. VS. OHMB (2016) LPELR- 40598 (SC) which held thus:
“The law is trite that special damages must be strictly proved by the person who claims to be entitled to them. The nature of the proof

depends on the circumstances of each case. See Okunzua vs. Amosu (1992) 6 NWLR (Pt. 248) 416 @ 432 E-G. See also: Oshinjinrin & Ors. vs. Elias & Ors. (1970) 1 ALL NLR 151 @ 156, where it was held inter alia, that a person claiming special damages must establish his entitlement to the particular type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.” Per KEKERE-EKUN, J. S.C.

In the case before the trial Court, special damages was not particularized in the pleadings but the Respondents merely claimed allowances for a period of time without naming the figure and how they are entitled. There was no evidence to support special damages. Deductions made cannot be at large. They are not entitled to the relief. I agree with the Appellants that the Respondents failed to justify the relief.

The Respondents admitted that in respect of the allegation that some issues were not resolved, submitted that it did not occasion a miscarriage of justice. It is settled that a trial and

intermediate Court must resolve all issues presented to it for resolution, see EMEKA VS. STATE (2014) LPELR-23020 (SC) which held thus:
“It is trite law that an Appeal Court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the Appeal. In such a situation, the Court may adopt such issues as may dispose of the Appeal and may not be bound to consider all the other issues he considers irrelevant and unnecessary. Even in cases where an Appellant files five issues for instance, and the respondent formulates one or two issues only, the Court can adopt the one or two issues of the Respondent if it finds that they are more cogent and able to determine the Appeal better than the five issues formulated by the Appellant. See Tunbi vs. Opawole (2000) 2 NWLR (Pt. 644) 275, Anyaduba vs. NRTC Ltd. (1992) 5 NWLR (Pt. 243) 535, Okonji vs. Njokanma (1991) 7 NWLR (Pt. 202) 131. In some cases, some issues may be subsumed in another or other issues.” Per OKORO ,J.S.C.
Ordinarily, I should strike out the appeal on the basis of breach of fair hearing but this being

an intermediate Court and in compliance with the position taken by the apex Court in the case ofIKPEKPE VS. WARRI REFINERY & PETROCHEMEICAL CO. LTD. & ANOR. (2018) LPELR – 44471 (SC) wherein EKO, JSC admonished intermediate Courts in this manner:
“The issue at the Lower Court was whether the appellant was entitled to the N300, 000.00 awarded to him, as damages for the wrongful act of the respondents, as defendants The Lower Court, having struck out the suit, did not decide or resolve the question. They should have resolved it, in case they may be wrong as an intermediate Court, on the issue of jurisdiction. The appeal before the Lower Court was not an interlocutory appeal but an appeal against final decision. It therefore behooved the lower Court, an intermediate Court, to resolve all the issues before it or express an opinion on the merits of the case This alternative course was what this Court enjoined the Lower Court to take, as can be seen from NIPOL LTD. vs. BIOKU INVESTMENT & PROCO LTD (1992) 23 NSCC (pt. 1) 606 at 618; KATTO vs. CBN (1991) 9 NWLR (pt. 214) 126 at 149.”
It is therefore on the basis of above that I resolved other issues

even though I should have struck out the appeal for breach of fair hearing..

action suo motu, it said “whatever these being judicial proceedings” and this was not raised by any party. That was a defence that the rules prescribed that it must be pleaded. That act of the Trial Judge infringed on the right of the Appellant. See DUDU ADDAH & 7 ORS. VS. HASSAN SAHI UBANDAWAKI (2015) 241 LRCN 1 and VICTINO FIXED ODDS LIMITED VS. JOSEPH OJO & 2 ORS. (2010) 185 LRCN 166, which gave the Court the right to raise an issue but also made it conditional, it said, the Court must call on parties to address it before the issue is resolved so that the right of the parties would not be breached. A breach of the right of fair hearing nullifies the entire proceedings which must be set aside. Breach of a fundamental right cannot be over looked or tolerated under any guise, thus Courts must be careful when raising issues suo motu, they must caution themselves to call on parties to address the Court before resolving the issue.

Flowing from above, the appeal is meritorious and hereby allowed. The Judgment of the Trial Court delivered by Hon. Justice Margaret- Mary Udoma in suit No. HU/46/2015 is hereby set aside.

I make no

order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in detail the judgment of my learned brother. Yargata. B. Nimpar, J.CA. and I entirely agree with reason and conclusion reached that the appeal is meritorious. I too allow the appeal and join my noble Lord in setting aside the judgment of the lower Court.

Appearances:

EKPA B. EKPA ESQ., For Appellant(s)

For Respondent(s)