IBOKETTE v. JULIUS BERGER (2021)

IBOKETTE v. JULIUS BERGER

(2021)LCN/15004(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/157/2017

RATIO

RULES: WHO CAN SIGN THE WRIT OF SUMMONS AS AN ORIGINATING PROCESS UNDER THE HIGH COURT CIVIL PROCEDURE RULES 2009 OF AKWA IBOM STATE

A careful and holistic reading of the provisions of the High Court Civil Procedure Rules 2009 of Akwa Ibom State is that it is only the Registrar who is given the opportunity to sign the writ of summons as an originating process while the writ could be presented by a Legal Practitioner or the claimant himself. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WORDS AND PHRASES: DEFINITION OF ORIGINATING PROCESS

First, in the definition section of the Rules, more specifically Order 1 Rule (2) there is no definition of Writ of Summons or anywhere where Writ of summons is mentioned or defined as “originating process”. Rather, “originating process” under the 2009 Rules means “any Court process by which a suit is initiated”. PER MOJEED ADEKUNLE OWOADE, J.C.A.
RULE: WHAT ACCOMPANIES WRIT OF SUMMONS UNDER THE HIGH COURT CIVIL RULES 2009 OF AKWA IBOM

Order 3 Rule 2 says:
2 –(1) All civil proceedings commenced by writ of summons shall be accompanied by:
a. Statement of Claim.
b. List of witnesses to be called at trial.
c. Written statement on oath of the witnesses and
d. Copies of every document to be relied on at the trial.
(2) Where a Claimant fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.
(3) Except in the cases in which different forms are provided in these Rules, the Writ of Summons shall be in Form 1 with such modifications or variations as circumstances may require.
I will pause here to consider the implications of holistic reading of Order 3 Rules 1, 2 and 3 together with the definition of originating process in Order 1 Rule 2 of the said Rules of Court.
1. Originating process includes Writ of Summons and Statement of Claim.
2. The processes are expected to be filed simultaneously.
3. The format of the Writ of Summons is as provided in Form 1 attached to the Rules. PER MOJEED ADEKUNLE OWOADE, J.C.A.
RULE: ATTITUDE OF THE APPEAL COURT TO THE REQUIREMENT OF SIGNATURE OF WRIT OF SUMMONS

This Court has severally held that the requirement of signature of writ of summons cannot be imposed on Legal Practitioners or Claimants where as in the instant case, it is only the Registrar that is required to sign such a writ of summons. See S.P.D.C LTD. v. GBENEYEI & ORS. (2019) 13 NWLR (Pt. 1689) 272 @ 293 per Awotoye J.C.A.; BAYERO v. MAINASARA (2006) 8 NWLR (Pt. 982) 391 C.A; UDOH v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (Pt. 304) 139 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: NATURE OF AN APPEAL

An appeal can only be based on an issue decided against a party and not an issue decided in favour of a party.
This is because an appeal is generally regarded as a continuation of an original suit rather than an inception of a new action. An appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See NDIC v. S.B.N. PLC. (2003) 1 NWLR (Pt. 801) 311 CA; OREDOYIN v. AROWOLO (1989) 4 NWLR (Pt. 114) 172 SC; BABALOLA v. STATE (1989) 4 NWLR (Pt. 115) 264 SC; NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1 CA; JUMBO v. BRYANKO INT. LTD. (1995) 6 NWLR (Pt. 403) 545 @ 547 CA. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ELDER ESSIEN DAVID IBOKETTE APPELANT(S)

And

JULIUS BERGER NIG. PLC RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice E. O. Anang of the Akwa Ibom State High Court sitting in Abak, delivered on 04/8/2016.

The Appellant as Claimant instituted this suit against the Respondent/Defendant by a Writ of Summons and Statement of Claim of 13/2/2012. The parties eventually joined issues at trial with the Claimant’s Amended Statement of Claim of 12/11/2013, the Amended Statement of Defence and the Appellant’s/Claimant’s Reply to Statement of Defence.

The claims of the Appellant against the Respondent are as contained in paragraph 17 of the Claimant’s Amended Statement of Claim thus:
By reason of the matters stated above, the Claimant suffered losses, and damages AND CLAIMS AS FOLLOWS:
a. The immediate restoration of the only access road to the claimant’s estate, particularly to its former state, as it was before being destroyed and reduced to a deep gulley, hindering the free flow of traffic and prosecution of his (Claimant’s) legitimate economic activities as at before.
b. The sum of N48,116,550.00

(Forty-Eight Million, One Hundred and Sixteen Thousand, Five Hundred and Fifty Naira) as compensation for the losses and damages caused to the estate and business of the claimant; as contained in the CERTIFICATE OF VALUE issued by the Estate Valuer calculated up to 31st March, 2012. The certificate of value is hereby pleaded and shall be relied upon at the hearing.
c. The sum of N25,000,000.00 (Twenty-Five Million Naira) only being general and special damages suffered by the claimant over the period of inactivity caused by the defendant.
d. With effect from 1st April, 2012, the sum of N115,862.57 (One Hundred and Fifteen Thousand, Eight Hundred and Sixty-Two Naira, Fifty Seven Kobo) per day and calculated to terminate on the day and date this matter is finally disposed of and settled; (this being the daily losses suffered by the claimant, and is derived from the CERTIFICATE OF VALUE of the Estate Valuer). The CERTIFICATE OF VALUE of the Estate Valuer earlier pleaded shall be relied upon at the hearing.

At the trial, the Appellant as Claimant testified for himself and called one other witness. The Respondent/Defendant called only one witness

in defence of the action.

The main plank of Appellant’s case at the trial Court is that while the Respondent was constructing the Abak Discharge Drain Project which was awarded to her by the Akwa Ibom State Government, the Respondent did not properly and carefully channel water into an existing gutter constructed by another company for the purpose of channeling rain water into the Abak River and consequently broke the existing gutter and destroyed the access road to the Appellant’s estate reducing it into a gulley and flooded the Appellant’s fish farm and destroyed same. The Respondent in her defence denied liability and stated that she adhered to international standards and employed best engineering practices in constructing the drains. At the end of trial, the sum of N300,000.00 (Three Hundred Thousand Naira) in general damages and cost of N10,000.00 (Ten Thousand Naira) were awarded against the Respondent while Appellant’s claim for special damages was refused. Consequently, the Appellant has appealed for failure to award special damages by the trial Court – and for insufficiency of the general damages awarded.

The relevant briefs of argument based on the Appellant’s Amended Notice and grounds of appeal of 10/11/2017 are as follows:
1. Appellant’s Brief of Argument which was filed on 11/2/2020. It is settled by A. A. Asuquo, Esq.
2. Respondent’s Brief of Argument (incorporating preliminary objection) of 9/3/2020. It is settled by B. N. Kumbe, Esq.
3. Appellant’s Reply Brief of Argument which was filed on 17/3/2020. It is settled by Edidiong Akpanuwa, Esq.

THE PRELIMINARY OBJECTION
Learned counsel for the Respondent raised a preliminary objection to the hearing of this appeal and nominated a sole issue for the determination of the preliminary objection. It is:
Whether the trial Court has the jurisdictional competence to determine the suit in view of the fact that the Writ of Summons in the said suit was neither signed by the claimant nor his counsel?

In arguing the preliminary issue, learned counsel for the Respondent reproduced the provision first of Order 6 Rule 1 of the High Court of Akwa Ibom State (Civil Procedure) Rules 2009 which provides, inter alia thus:
Originating process shall be prepared by a

Plaintiff or Claimant or his Legal Practitioner.

And also Order 6 Rule 2 (3) of the said rules which provides as follows:
Each copy shall be signed and stamped by the Legal Practitioner or by the Plaintiff or Claimant where he sues in person…

Respondent’s counsel contended that by the provision of Order 6 Rule 2 (3) of the rules of the trial Court, it is mandatory that, for a Writ of Summons to be valid to vest a Court with jurisdiction to entertain any case, the Writ of Summons (originating process) must either be signed by the legal practitioner representing the Claimant or the Claimant himself.

He submitted that a perusal of the Writ of summons on pages 2-4 of record shows that the aforesaid originating process was neither signed by the legal practitioner nor the claimant as required by law.

On account of the above, Respondent’s counsel submitted that the suit in the Court below was not duly initiated by due process of law.

Learned counsel for the Respondent referred to a host of cases to support his contention. The cases referred to include DANGANA v. USMAN (2013) 6 NWLR (Pt. 1349) 50 78-79; PERETU v. GARIGA

(2013) 5 NWLR (Pt. 1348) 415; MADUKOLU v. NKEMDILIM (1962) NSCC 374 @ 379-380 (1962) 2 SCNLR 341; GALADIMA v. TAMBAI (2000) 11 NWLR (Pt. 677) 1; ARAKA v. EJEAGWU (2000) 15 NWLR (Pt. 692) 784; OKARIKA v. SAMUEL (2013) 7 NWLR (Pt. 1352) 19 @ 43; SLB CONSORTIUM LTD. v. NNPC. (2011) 9 NWLR (Pt. 1252) 317 @ 337 – 338.

Learned counsel for the Respondent concluded that there is a feature in this case cum appeal which renders the Writ of Summons incurably defective and incompetent and therefore this honourable Court lacks the jurisdiction to entertain this appeal. He referred to the cases ofBRAITHWAITE v. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) 1 @ 20; SARAKI v. F.R.N. (2016) 1-2 SC (Pt. V) 59 @ 114; ONI v. CADBURY NIG. PLC. (2016) 1-2 SC (Pt. 1) 1 @ 30.
He urged us to resolve the preliminary objection in the Respondent’s favour.

The first point made by the learned counsel for the Appellant in his reply brief is that failure by counsel for the Appellant to sign the Writ of Summons will not nullify the proceedings at the lower Court, as such failure is an irregularity that can be cured and/or waived.

Appellant’s counsel insisted

that the non-signing of the writ will be treated as an irregularity, more so as the opposing party had taken fresh steps by filing processes in the case. Appellant’s counsel referred to the cases of KHALID v. AL NASIM TRAVELS AND TOURS LTD. (2014) LPELR – 22331 (CA) @ 23-25; DAGOGO v. C.P.C (2013) 2 NWLR (Pt. 1339) 448 @ 472.

Appellant’s counsel submitted that the authorities cited by the learned counsel for the Respondent are distinguishable from the facts of this case. That in the cases relied upon by the Respondent, the originating process was signed by a Law Firm and not by a legal practitioner as envisaged under the Legal Practitioners Act. Accordingly, the Court held that same was in contravention to Section 2 and 24 of the Legal Practitioners Act.

He submitted that in the instant case, the Writ of Summons was not signed at all as required under Order 6 Rule 2 (3) of the High Court Rules. He repeated that the position here (non-signing of the writ) is not caught by Sections 2 and 24 of the Legal Practitioners Act because the writ was signed by a Law Firm or a person who is not a legal practitioner. There is no place in the

Legal Practitioners Act, said counsel that makes it mandatory for the Writ of Summons to be signed by a lawyer but only requires that a Court process can only be signed by a legal practitioner when a legal practitioner is involved in a case.

He contended that the issue borders on procedural jurisdiction and not on jurisdiction based on substantive law. On this, Appellant’s counsel referred to the case of DUKE v. AKPABUYO L. G. (2005) LPELR – 963 (SC) @ 25-26.
He urged us to resolve the preliminary objection against the Respondent.

One notable point that came out from the Appellant’s Reply to the Respondent’s objection is that the authorities cited by the learned counsel for the Respondent are distinguishable and not applicable to the facts of the case. Beyond this point, I would say that the submissions of the learned counsel for the Appellant do not offer this Court sufficient guide on the issue submitted for determination. The point here which eluded the Respondent’s counsel is that neither the Appellant nor his counsel signed the writ of summons but indeed and with due respect to the learned counsel for the

Respondent, the Appellant’s counsel signed the originating process which initiated the suit on appeal.
A careful and holistic reading of the provisions of the High Court Civil Procedure Rules 2009 of Akwa Ibom State is that it is only the Registrar who is given the opportunity to sign the writ of summons as an originating process while the writ could be presented by a Legal Practitioner or the claimant himself.
However, in the instant case, the Appellant’s counsel appended his signature to the Statement of Claim which in fact is the only originating process between the two; that is Writ of Summons and Statement of Claim of which he could append his signature.
Our enquiry in this terrain requires a total appreciation of the provisions of the 2009 High Court Civil Procedure Rules of Akwa Ibom State.
First, in the definition section of the Rules, more specifically Order 1 Rule (2) there is no definition of Writ of Summons or anywhere where Writ of summons is mentioned or defined as “originating process”. Rather, “originating process” under the 2009 Rules means “any Court process by which a suit is

initiated”.
Order 3 Rule 2 says:
2 –(1) All civil proceedings commenced by writ of summons shall be accompanied by:
a. Statement of Claim.
b. List of witnesses to be called at trial.
c. Written statement on oath of the witnesses and
d. Copies of every document to be relied on at the trial.
(2) Where a Claimant fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.
(3) Except in the cases in which different forms are provided in these Rules, the Writ of Summons shall be in Form 1 with such modifications or variations as circumstances may require.
I will pause here to consider the implications of holistic reading of Order 3 Rules 1, 2 and 3 together with the definition of originating process in Order 1 Rule 2 of the said Rules of Court.
1. Originating process includes Writ of Summons and Statement of Claim.
2. The processes are expected to be filed simultaneously.
3. The format of the Writ of Summons is as provided in Form 1 attached to the Rules.
In the instant case, the Appellant’s counsel indorsed his name in the

Writ of Summons in presenting same to the Registrar who indeed issued the writ of summons.
The signature of the Appellant is imprinted in the Statement of Claim as there is no provision, no space, no requirement of the signature of the Appellant’s counsel on the writ of summons.
The Appellant’s counsel in this case fully complied with the requirement for the issuance of Writ of Summons as stated in Form 1 which does not require his signature on the writ of summons.
It is the combination of the two documents that practically qualifies as originating process under the 2009 Akwa Ibom State High Court Civil Procedure Rules.
Now, the following provisions are found in Order 6 of the Akwa Ibom State High Court Civil Procedure Rules, 2009.
6 (1) Originating process shall be prepared by a Plaintiff or Claimant or his Legal Practitioner and shall be clearly printed on good quality white opaque paper.
2 (1) The Registrar shall sign and stamp every originating process whereupon it shall be deemed to be issued.
(2) A Plaintiff or Claimant or his Legal Practitioner shall on presenting any originating process for signing and

stamping, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed and stamped by the Legal Practitioner or by the plaintiff or claimant where he sues in person, and shall be certified after verification by the Registrar as being a true copy of the original process filed.
3. The Registrar shall after signing and stamping an originating process file it and note on it the date of filing and the number of copies supplied by a plaintiff or claimant or his Legal Practitioner for service on the Defendants.
The Registrar shall then make an entry of the filing in the Cause Book and identify the action with a suit number that may comprise abbreviation of the Judicial Division, a chronological number and the year of filing.
4. The Registrar shall promptly arrange for personal service on each defendant a copy of the originating process and accompanying documents duly certified as provided by Rule 2 (3) of this Order.
It would be recalled that the learned counsel for the Respondent held on to the provision of

Order 6 Rule 2 (3) for his insistence that the Appellant’s counsel failed to sign the Writ of Summons in the instant case. By that argument, Respondent’s counsel did not realise that there is nowhere in the Rules where the Legal Practitioner or Claimant is required to sign the writ of summons. Rather, the rules makes reference to “originating process” which synonymously or interchangeably refers to Writ of Summons or Statement of Claim. Better still, and in conformity with the provision of Order 2 Rules 2 and 3, a combination of the two processes that is the Writ of Summons and the Statement of Claim.
Put shortly, the Legal Practitioner under the aforesaid Rules is supposed to sign the originating process which includes the Statement of Claim but not particularly the writ of summons. The requirement of signing the Writ of Summons by Form 1 under the aforesaid Rules belongs to the Registrar and not for the Legal Practitioner or the Claimant.
This Court has severally held that the requirement of signature of writ of summons cannot be imposed on Legal Practitioners or Claimants where as in the instant case, it is only the Registrar that

is required to sign such a writ of summons. See S.P.D.C LTD. v. GBENEYEI & ORS. (2019) 13 NWLR (Pt. 1689) 272 @ 293 per Awotoye J.C.A.; BAYERO v. MAINASARA (2006) 8 NWLR (Pt. 982) 391 C.A; UDOH v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (Pt. 304) 139 SC.
The originating process in this case was duly presented to the Registrar by the endorsement of the Appellant’s counsel’s name. The Registrar duly signed the Writ of Summons as originating process by virtue of Order 6 Rule 2 (1) and the Appellant’s counsel duly signed the Statement of Claim as originating process by virtue of Order 6 Rule 2 (3).
Learned counsel for the Respondent cannot claim that the originating process in this case was not signed. The Writ of Summons was prepared in conformity with Form 1 of the Rules, duly signed as required by the Registrar of Court while the Appellant’s counsel signed the Statement of Claim portion as originating process under Order 6 Rule 2 (3).
The Respondent’s preliminary objection is misconceived and cannot be sustained.
The Respondent’s preliminary objection is accordingly overruled.

THE MAIN APPEAL
Learned counsel for the Appellant nominated two (2) issues for determination of the appeal. They are:
1. Whether the learned trial judge properly evaluated the evidence presented by parties in the lower Court in arriving at the judgment in this case.
2. Whether the learned trial judge was right in dismissing the Appellant’s claim on special damages on the ground that same was not specifically pleaded and strictly proved as well as awarding only N300,000.00 (Three Hundred Thousand Naira) as nominal damages which he tagged general damages to the Appellant.

Learned counsel for the Respondent adopted the issues formulated by the Appellant.

On Issue No. 1 which is on evaluation of evidence, Appellant’s counsel submitted that the Respondent having not specifically denied the pleadings of the Appellant in paragraphs 11, 13, 14, 15, 16 and 17 of the Amended Statement of Claim, the trial Court ought to have given effect to them as admission and relied on them as such accordingly. After referring to the cases of ASAFA FOODS FACTORY LTD. v. ALRAINE NIG. LTD. & ANOR. (2002) WRN 1 @ 20-21; NWADIKE v. IBEKWE (1987) 4

NWLR (Pt. 67) 718 @ 841; LAWAL OWOSHO v. DADA (1984) 7 SC 149 @ 163, learned counsel for the Appellant submitted that the effect of such admission on the present case are:
(a) That the negligent discharge of water by the Respondent into the existing pool of water caused the gutter to collapse and got broken thereby emptying itself into the property of the Appellant and flooded his fish farm, etc.
(b) That had the Respondent took care and diligently executed the contract awarded her, she would have avoided the flood into the fish farm of the Appellant which flood caused damage on the Appellant’s fish farm, etc.

That in his judgement, the learned trial judge rightly held:
….on inspection of the locus, it was seen that the gutter collapsed seriously and water cannot be channeled through it into river directly. The representative of the Defendant saw it and admitted it as per the inspection report of 13/11/2015…. Although the Defendant claims to have denied paragraph 8, the averment therein tantamount to admission of paragraph 7 of the Statement of claim. They had actually channeled the water into the existing gutter but

the pressure of water channeled into it had caused the collapse of the culvert and this led to the flooding of the claimant’s fish pond….
See pages 227-228 of the Record of Proceedings.

He submitted that having found as above, the learned trial judge ought to have granted the relief of the Appellant in full at least, the Court ought to hold that the weight of evidence tendered by the Appellant has actually tilted the scale in his favour. Accordingly, the Court ought to have awarded substantially the general damages claimed by the Appellant and not to award “nominal” damages as was awarded in this case.

He urged us to hold that ground 1 of the grounds of appeal of the Appellant should succeed as the learned trial judge failed to properly evaluate the evidence tendered at the trial for if he did, he would have granted the claim of the Appellant on general damages as required by law. That what the learned trial judge awarded to the Appellant was “nominal” damages which he later translated to general damages.

In response to Appellant’s Issue No. 1, learned counsel for the Respondent without filing a

cross-appeal submitted that the findings of the trial Court that the Respondent failed to exhibit due diligence to see that the water channeled actually got down to the river as anticipated is not founded on the pleadings and evidence led by the parties. He contended that by Exhibit D2 at page 108 of the record, the scope of Respondent’s authority or contract with the Government of Akwa Ibom State did not extend to construction of the drain at Essien Inyang Ideh Street, where the drains collapsed, spilling water into its environs and the Appellant’s land.

He added that if anybody is to be held liable for the gutter that got broken and split water into the Appellant’s land, it should have been the owners and designers of the drainage system, being the Akwa Ibom State Government.

It is bewildering that the Appellant’s Issue No. 1 based on ground 4 of the Appellant’s Amended Notice and Grounds of Appeal of 10/11/2017 is an appeal against evaluation of evidence which in fact was resolved in favour of the Appellant. An appeal can only be based on an issue decided against a party and not an issue decided in favour of a

party.
This is because an appeal is generally regarded as a continuation of an original suit rather than an inception of a new action. An appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See NDIC v. S.B.N. PLC. (2003) 1 NWLR (Pt. 801) 311 CA; OREDOYIN v. AROWOLO (1989) 4 NWLR (Pt. 114) 172 SC; BABALOLA v. STATE (1989) 4 NWLR (Pt. 115) 264 SC; NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1 CA; JUMBO v. BRYANKO INT. LTD. (1995) 6 NWLR (Pt. 403) 545 @ 547 CA.

Apparently what the Appellant intended to complain on is the insufficiency of the general damages awarded and not on evaluation of evidence which was indeed resolved in the Appellant’s favour.
Appellant’s ground 4 of the Amended Notice of appeal and the Issue No. 1 on which it is based are incompetent and accordingly struck out.

Learned counsel for the Appellant submitted in his Issue No. 2 that although the Appellant specifically pleaded special damages in paragraph 16 of his Statement of Claim as well as led evidence in support

by tendering Exhibit P14, the Court still held that special damages was not pleaded and proved.
He submitted that the Estate Valuer who prepared Exhibit P14 – Uyobong Sunday Etuk and through whom Exhibit P14 was tendered was not discredited during cross examination.

Appellant’s counsel submitted that his Lordship nevertheless held:
The Certificate of Value was tendered and marked Exhibit “P14”. This Certificate of Value is an assumption. It is not specific. There is no particulars of special damages. The law is trite that special damages must be pleaded and strictly proved…
That his Lordship held further thus:
This is a worthless valuation. I hold that this claim fails.

Learned counsel for the Appellant submitted further that the trial Court was in error in refusing to award special damages to the Appellant. That the position of the law is that a document pleaded, relied upon and tendered in evidence is part of the pleadings.

On this, Appellant’s counsel referred to the cases of MARINE MANAGEMENT ASSOCIATES INC. & ANOR v. NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (Pt. 1333) 506 @

533; BANQUE GENEVOISE DE COMMERCE ET DE CREDIT v. CIA MAR DI ISOLA SPETSAI LTD. (1962) 2 SCNLR 310; EHOLOR v. IDAHOSA (1992) 2 NWLR (Pt. 223) 323; A.G ANAMBRA STATE v. ONUSELOGU ENT. LTD. (1987) 4 NWLR (Pt. 66) 547.

He submitted that the Appellant clearly pleaded Exhibit P14 in paragraph 16 of the Amended Statement of Claim thus:
The claimant engaged an Estate Surveyor and Valuer who conducted a valuation of the property destroyed in the claimant’s estate. The summary of the report is embodied in the document titled “Certificate of Value”. The said report is hereby pleaded and shall be relied upon at the hearing.

That in reply to paragraph 16 of the Amended Statement of Claim of the Appellant, the Respondent pleaded in paragraph 12 of her Amended Statement of Defence thus:
The Defendant denies paragraphs 13-17 of the Claimant’s Statement of Claim.

By the reason of the above, Appellant’s counsel submitted that apart from the position of the law in the case of the MARINE MANAGEMENT ASSOCIATES INC. & ANOR. v. NATIONAL MARITIME AUTHORITY (supra) the law is trite that the pleading of the Respondent in

paragraph 12 of the Amended Statement of Defence of the Respondent amounted to admission; being a general traverse.

On this, Appellant’s counsel referred to the cases of ADIKE v. OBIARERI (2002) 18 WRN 24 @ 39-40; ASAFA FOODS FACTORY LTD. v. ALRAINE NIG. LTD. (2002) 52 WRN 1 @ 113-114; ORUWARI v. OSLER (2013) 5 NWLR (Pt. 1348) 535 @ 559.

He submitted further that by Order 15 Rule 5(1) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009;
Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.

Appellant’s counsel further submitted that having admitted paragraph 16 of the Amended Statement of Claim in paragraph 12 of the Amended Statement of Defence, the Appellant had no legal obligation to call evidence in support of the pleadings even though he did according to counsel.

Still on Issue No. 2 but on another wicket, learned counsel for the Appellant submitted that the award of “nominal” damages as did the trial Court, cannot replace the “general damages” claimed by

the Appellant. This, according to counsel is because “nominal” damage is different from “general” damage. The Black’s Law Dictionary 6th Ed. defines “nominal” thus:
Titular, existing in name only, not real a substantial; connected to the transaction or proceedings in name only, not in interest. Not real or actual; merely named or stated; or given without reference to actual conditions, often with the implication that the thing named is so small, slight, or the like, in comparison to what might properly be expected as scarcely to be entitled to the name.

The same dictionary defines general as:
From Latin word genus. It related to the whole kind, class or order. Pertaining to or designating the genus or class, as distinguished from that which characterizes the species of individual; universal; not particularized as opposed to special….

He submitted that by the definitions above, it is clear that a party who in his action before a Court of competent jurisdiction asked for general damages cannot rightly be awarded nominal damages by the Court. This is so because a Court cannot rightly give to a

party what that party did not ask of the Court. The Court ought to have awarded general damages which was the prayer of the Appellant and not nominal damages as awarded to the Appellant.

Learned counsel for the Appellant submitted further that in the present case, the learned trial judge agreed and held that the Appellant had proved general damages when he held in his judgment on page 231 of the record of proceedings thus:
Although the claim for special damages have all failed. It is in evidence that the Claimant’s fish farm was flooded…..
See page 231 of the record.

Having so held, the Appellant was entitled to general damages. When however the learned trial judge held further in his judgment thus:
Since the claimant has not stated the nature and extent of the flood, I will award him nominal damages….. see page 231 of the record.

The learned trial judge went ahead to hold:
I hereby award the claimant the sum of N300,000.00 (Three Hundred Thousand Naira) as general damages for the flooding of his fish farm as a result of the Defendant’s negligence.

Appellant’s counsel further referred to

the case of UBA PLC. V. BTL INDUSTRIES LTD. (2006) 19 NWLR (Pt. 1013) 61 @ 1453 where it was held that:
General damages, usually awarded to assuage loss suffered by a plaintiff from the act of a defendant, a matter of inference based on the trial Court discretion.

He reasoned that a judge should bear in mind galloping inflation and the purchasing power of the naira in awarding general damages. He referred to the cases of IGHRERINIOVO v. S.C.C NIG. LTD. (2013) 10 NWLR (Pt. 1361) 138 @ 154; EZE v. LAWAL (1997) 2 NWLR (Pt. 487) 333; IFEANYI CHUKWU OSONDU CO. LTD. v. AKHIGBE (1999) 11 WLR (Pt. 625) 1; UGO v. OKAFOR (1996) 2 NWLR (Pt. 483) 542; KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 and concluded by urging us to grant substantial sum as general damages to the Appellant.

On Issue No. 2, learned counsel for the Respondent submitted that it is trite that the claim for special damages requires that it must be specifically pleaded and strictly proved by sufficient and credible evidence. He referred on this to the cases of AJAGBE v. IDOWU (2011) 5-7 MJ.S.C. (Pt. 1) 80 @ 103; OSHINJINRIN & ORS v. ALHAJI ELIAS & ORS. (1970) 1 ALL NLR 153;

DUMEZ (NIG.) LTD. v. OGBOLI (1972) 1 ALL NLR 241 and GONZEE (NIG.) LTD. v. NERDC (2005) 13 NWLR (Pt. 943) 634.

He referred to paragraph 16 of the Respondent’s Amended Statement of Claim and the Valuation Report Exhibit P14 relied on by the Respondent in proof of special damages.
He noted that the said Exhibit P14 was signed by “Bassey N. & Co.”, a non-juristic entity.

He submitted relying on the cases of NIGERIAN ARMY v. SAMUEL (2013) 14 NWLR (Pt. 1375) 466 @ 482; EDILCO (NIG.) LTD. v. U.B.A. PLC. (2000) FWLR (Pt. 21) 792; CHUKWUKA OGUDO v. STATE (2011) 48 NSQR 377 @ 409 that the Certificate of Value Exhibit P14 is in effect an unsigned document and is worthless.

In response to Appellant’s argument that paragraph 12 of the Appellant’s Amended Statement is an admission being a general traverse, learned counsel for the Respondent referred to the Supreme Court decision in NNPC v. CLIFCO NIG. LTD. (2013) 4 MJ.S.C. 142 @ 174 that special damages cannot succeed based on admission since it must be specially pleaded and proved strictly.

Learned counsel for the Respondent pointed out various missing gaps of

particulars in Exhibit P14 and submitted that a Court is not entitled to make an award of special damages based on conjecture or some fluid and speculative estimate of alleged loss sustained by a claimant.

He referred to the cases of UBN v. AJABULE (2014) 12 MJ.S.C. (Pt. 11) 155 @ 171-172; DUMEZ (NIG.) LTD. v. OGBOLI (supra); OSUJI v. ISIOCHA (1989) 3 NWLR (Pt. 111) 623 1 ALL NLR 241 distinguished the case of MARINE MANAGEMENT ASSOCIATES INC. & ANOR. v. NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (Pt. 1333) 506 @ 553 relied on by the learned counsel for the Appellant and concluded on Issue No. 2 that the learned trial judge was justified to have awarded only nominal damages to the Appellant.

There are two major points raised in Appellant’s Issue No. 2. The first is the alleged error by the learned trial judge in failing to award special damages to the Appellant. The second is the alleged insufficiency of the award of general damages to the Appellant.

On the first, learned counsel for the Appellant made heavy weather of the decision in MARINE MANAGEMENT ASSOCIATES INC. & ANOR. v. NATIONAL MARITIME AUTHORITY (supra) for the proposition

and to the effect that a reference to a document in a pleading makes the document part of the pleading. And, that in the instant case, there (Appellant’s Exhibit P14) was part of the Appellant’s pleadings which ought to be given effect to.

With respect to the learned counsel for the Appellant, the issue in the Court below and now here is not that Exhibit P14 was not taken as an integral part of the Appellant’s pleadings but rather whether Exhibit P14 deserves to be accorded any weight in proof of special damages.

Learned counsel for the Respondent joined the learned trial judge in describing Exhibit P14 as a “worthless” document having not been signed by a juristic person.

I will add that Exhibit P14 on pages 146-155 of the Record of Appeal did not show any distinct particularity as to special damages and I do agree with the learned counsel for the Respondent when he relied on the cases of UBN. v. AJABULE (2014) 12 MJ.S.C. (Pt. II) 155 @ 171-172; OSUJI v. ISIOCHA (1989) 3 NWLR (Pt. III) 623 to make the point that fluid and speculative estimates are not sustainable in law with respect to special damages, to warrant

judgment in a claimant’s favour.

Still on this, I think Exhibit P14 further speaks to its own worthlessness when it declared on page 153 of the Records that:
OPINION OF VALUE
Based on physical inspection, market survey and valuation analysis, we are of the professional opinion that the value of the interest in the subject property belonging to Elder E. D. Ibokette valued for the purpose of ascertaining a fair compensation sum was in the sum of Forty-Eight Million, One Hundred and Sixteen Thousand, Five Hundred and Fifty Naira (N48,116,550.00) only.
CONCLUSION
This report is for the use of the addressee only. Our company therefore accepts no responsibility to any third party for the whole or part of the contents. If the valuation figure contained in this report is disclosed to a third party, it is required that the basis of our valuation be stated. Similarly, if the publication of the valuation figure is contemplated, a prior approval as to the form and context in which it is to appear should be sought and obtained.

The learned trial judge was indeed right not to have acted on or given any weight or value to Exhibit

P14.

Learned counsel for the Respondent gave a full and convincing answer to the argument by the Appellant’s counsel that paragraph 12 of the Respondent’s Amended Statement of Claim is an admission of the averment in paragraph 16 of the Appellant’s Amended Statement of Defence.
In N.N.P.C. v. CLIFCO NIG. LTD (2013) 4 MJ.S.C. 142 @ 174, the Supreme Court held thus:
Now, can what appears to be an admission apply to a claim for special damages, or put it another way, can a claim for special damages succeed because it is admitted. I do not think so. Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. See INCAR v. BENSON (1975) 3 SC p. 177; ODULAJA v. HADDAD (1973) 11 SC p. 351.

On the point of “nominal” and “general damages” raised by the learned counsel for the Appellant, it is clear from the totality of the judgment of the learned trial judge that the trial Court merely used the word “nominal” as an expression of

the quantum of the general damages awarded to the Appellant.
I have no doubt that the discretion of the learned trial judge in awarding general damages was exercised judicially and judiciously having regards to established principles.
Indeed, there is no fixed rule by which to assess general damages as each case will ultimately depend on its own facts. See F.B.N. PLC. V. OLALEYE (2013) 1 NWLR (Pt. 1334) 102 CA; OANDO (NIG.) PLC. V. ADIJERE (W/A) LTD. (2013) 15 NWLR (Pt. 1377) 374 SC.

In the instant case, the learned trial judge was indeed right in not placing any reliance on Appellant’s Exhibit P14 to award special damages and exercised his discretion properly in the award of general damages to the Appellant.
Appellant’s Issue No. 1 was struck out for incompetence.
Appellant’s Issue No. 2 is resolved against the appellant.

The only competent Issue in this appeal having been resolved against the Appellant, the appeal lacks merit and it is accordingly dismissed.
Parties to this appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just

delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A.

Learned counsel for the Respondent made heavy weather of the alleged non-signing of writ of summons as if the statement of claim had not been signed. It is trite law that the statement of claim supersedes the writ of Summons. See Agbanelo v. Union Bank of Nigeria Ltd (2000) 4 SC (pt. 1) 233. The statement of claim having been duly signed as required by the Rules of Court, the preliminary objection had no basis. For this reason and the more detailed reasons contained in the lead judgment, I too overrule the preliminary objection of the Respondent.

There was no basis for the complaint by the Appellant in ground 1 of the appeal from which issue 1 was formulated when the decision complained of was in his favour. For the more elaborate reasons contained in the judgment, I also strike out ground 1 and issue 1 of the Appellant’s brief.

The award of damages by the Court below to the Appellant having been done judicially and judiciously, the Court has no reason to interfere.

For reason contained in the lead judgment, I too dismiss the appeal for lacking in merit.

I abide by all other orders including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A: I have had the benefit of reading in draft the lead judgment of my learned brother MOJEED ADEKUNLE OWOADE, J.C.A., just delivered.
I agree entirely the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed. I too dismiss the appeal.

Appearances:

A. ASUQUO, ESQ. WITH HIM, EDIDIONG AKPANUWA, ESQ. For Appellant(s)

N. KUMBE, ESQ. For Respondent(s)