INTELS NIG. LTD. & ORS v. WILLIAM E. BASSEY (2011)

INTELS NIG. LTD. & ORS v. WILLIAM E. BASSEY

(2011)LCN/4332(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of February, 2011

CA/C/93/2010

RATIO

ORAL/WRITTEN AGREEMENT: WHETHER PAROL EVIDENCE CAN BE USED TO ALTER THE TERMS OF A WRITTEN AGREEMENT

WRITTEN AGREEMENT: WHETHER WHAT IS NOT CONTAINED IN A DOCUMENT CAN BE READ INTO IT OR READ OUT OF IT WHAT IS NOT THERE

…it is still good law, that parties cannot read into a document what is not there or read out of it what is not there. Thus, a court in the invocation of its interpretative jurisdiction will only pronounce on the clear wordings contained in any document. See Kurubo v. Zach – Motison (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 102. Thus, in construing a written agreement which binds and governs the relationship between parties to a contract, the court must confine itself to the plain words and ordinary meaning derivable from the provisions containing the rights, obligations and entitlements of the parties as provided therein. See Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

WHAT ARE SALARY, GROSS SALARY, NET SALARY AND GRATUITY
Salary is an agreed or fixed recompense or emolument for work done or services rendered and usually paid to an employee by an employer at regular intervals, for instance monthly. As for gratuity, it is in the nature of fringe benefit given to an employee for a deserving meritorious service. On the other hand, basic salary and all entitled allowances payable to an employee constitute gross salary, while net salary is gross salary less all deductions’ Put differently; gross salary is the total amount of income from all sources before any deductions are made. Thus, gross salary can be contra distinguished from basic salary’ Hence, while the former includes the latter, the latter excludes the former’ It is thus obvious that “annual gross salary” will be higher than “annual basic salary.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SPECIAL DAMAGES: WHAT ARE SPECIAL DAMAGES; HOW SPECIAL DAMAGES MUST BE PROVED IN ORDER TO SUCCEED

Let me reiterate/ that special damages are such that the law will not presume or infer from the nature of the act complained of. This is because, they do not flow or follow in the ordinary course of events. They are special and exceptional in their character’ Hence they must be specially pleaded and strictly proved. See Onuigbo v. Nwekeson (1993) 3 NWLR (Pt. 283) 533; Ekennia v. Nkpa – kara (L997) 5 NWLR (Pt. 504) 152, Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 931) 439. Thus, it has been long settled, that in order to succeed in an action for special damages, it must be strictly proved. The term “strict proof”, means no more than that the evidence adduced must ventilate and vindicate the particulars pleaded in the statement of claim. The evidence must indicatively particularize and exactly identify with clarity the averred losses with measurable exactitude. The required standard is not especially or exceptionally high to the extent of not being readily attainable. What is required is evidence which is apt and of such a magnitude that lends itself to ascertainable proclivity’ That is, amplified evidence necessary to emblazon the pleadings, provides a basis for the claim and pedestal for the computation. Again, what determines strict proof depends largely on the given facts and peculiar circumstances of each case. Invariably, the burden in this regard is discharged when there is credible evidence that enhances proximate assessment or quantification of the alleged losses or damages. It is to be noted that proof of special damages does not revolve around documentary evidence alone. While documentary evidence remains one of the surest means to so do, it is by no means the only means. See Kurubo (supra). It is established law, that any assertion in pleadings to the effect that a party has suffered damages and any averment as to the amount or extent of the damages is deemed to have been traversed unless it is specifically or unequivocally admitted. See Produce Marketing Board v. A. O. Adewunmi (1972) 11 SC 111/24. The burden to specifically plead and strictly prove special damages is on a party who claims it. Although, the tendering of documentary evidence in the form of receipts in proof of special damages could be a good mode of discharging the burden on the plaintiff claimant, it is however not an indispensable or exclusive means of poof of special damages. Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate to engender its disentitlement. I am thus in tandem and at par with the dictum in F. B. N. Ltd. v. Owie (1997) 7 NWLR (Pt. 484) 744/756 where Akpabio, JCA stated thus: “A lawyer’s professional fee is not something to be proved by mere ipse dixit. Everybody knows that lawyers issue receipts for any money paid to them.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

INTERFERENCE WITH THE AWARD OF DAMAGES: WHEN AN APPELLATE COURT WILL INTERFERE WITH AN AWARD OF DAMAGES MADE BY A TRIAL COURT
It is an established principle of law that an appellate court will interfere with an award of damages made by a trial court, where it has been challenged by a complaint and established inter alia, that the award was made in violation of law and that such intervention will serve the cause and interest of justice. See: Sabru Motors Ltd. v. Rajaf Entp. (2002) 7 NWLR (pt.766) 243. Akinkugbe v. Ewulum Holdings (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) 375; Otaru & Sons v. Audu Idris (1999) 6 NWLR (pt. 606) 330. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

JAFARU MILAILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDUL RAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. INTELS NIG. LTD.
2. ASSOCIATED MARITIME SERVICES LTD.
3. MR. ASIME ELIJA SMART Appellant(s)

AND

WILLIAM E. BASSEY Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): The respondent herein was employed as a security guard level 2-2 in the services of the 1st and 2nd appellants on 1st October, 1998. Confirmation of his employment took effect from 1st April, 1999. The said employment was withdrawn with effect from 18th March, 2005. The respondent was paid the sum of N240, 531.37 as his full entitlement upon his discharge from the said employment. The respondent maintained that the sum of N641, 583.68 was his due entitlement and he approached the appellants through his solicitors in respect thereof. Upon being rebuffed by the appellants, the respondent instituted an action against the appellants by way of undefended list procedure, at the High Court of Justice, Cross River State, holden at Calabar, in his bid to recover the outstanding balance of his asserted due entitlement. The appellants filed their notice of intention to defend and the matter was thereafter transferred to the general cause list with leave of the trial court. Before the trial court, the respondent claimed the following reliefs in paragraph 13 of his statement of claim:
“13. Wherefore the plaintiff claims as follows:
a. The sum of N401, 052.31 (Four Hundred and One Thousand, and Fifty Two Naira, Thirty-One Kobo balance of his under paid entitlement.
b. Fifty Thousand Naira cost of action and legal fees.
c. N15,000.00 being cost of retaining the services of the firm of accounts”
At the hearing before the trial court, the respondent testified for himself and called an additional witness, while one witness testified for the appellants. Various documents were tendered, admitted and marked as exhibits. At the conclusion of hearing and after the adoption of written addresses by the learned counsel for the parties, the learned trial judge, Hon Justice S. M. Anjor, delivered his judgment on 10th June, 2009, wherein he held that the respondent, had proved his case, against the appellants and judgment was accordingly entered in his favour.
Aggrieved by this decision, the appellant’s joint notice of appeal on 21st August, 2009 with two grounds of appeal. In compliance with the rules of this Court, parties duly filed and exchanged briefs of arguments. In the appellants, brief prepared by Charles E. Duke Esq., two issues were distilled therefrom as calling for determination in this appeal. They are:
“(1) Whether the Learned Trial Judge was not wrong in holding that the Respondent’s ‘annual gross salary’ included items like transport allowance, housing allowance, etc. contrary to the terms in Exhibit 6 (page 24 thereof) (see Ground 1 of the Notice of Appeal).
(2) Whether the Learned Trial Judge was not wrong in awarding as special damages the sum of N50,000.00 (Fifty Thousand Naira) as legal fees. (See Ground 2 of the Notice of Appeal).”
On the other hand, in the respondent’s brief prepared by F. O. Riman Esq. a sole issue was formulated for determination by this Court and it goes thus:
“Whether the lower court was right in entering judgment in favour of the Respondent having regard to the evidence before the court.”

On 13th December, 2010, after this court became duly satisfied that the learned counsel for the respondent has been served with the hearing notice in respect of the instant appeal, the court proceeded with the hearing and accordingly treated the appeal as having been argued on the respondent’s brief of argument, prepared by F. O. Riman Esq. and filed on 3rd March, 2010. In determining this appeal, I will adopt the issues framed by the appellants. This is moreso, because the questions posed in both issues are germane to the determination of this appeal. Howbeit, it is pertinent to note that the respondent canvassed arguments in respect of both issues formulated by the appellants. Hence the risk of his being short – changed does not arise.
On the first issue, it is the submission of the learned counsel for the appellants, that it was wrong for the learned trial judge to have held that the annual gross salary, which served as the basis for computation of respondent’s terminal benefits, included items like transport allowance, housing allowance and so on. It was contended that this holding was contrary to the terms in Exhibit 6 – 2005 Collective Agreement of Junior Staff condition of service, which is operational and binding between the parties herein.
Relevant aspect of clause 6 at page 24 of Exhibit 6 was reproduced thus:
“GRATUITY/END OF SERVICE ALL GRADES:
5 – 9 YEARS: 25% OF Annual Gross Salary multiply by number of years served.”
It was then contended that the correct computations were made in Exhibit 3 – Computation of Respondent’s Entitlements, with the submission that the learned trial judge, was wrong to have read into the document”, that is Exhibit 6 “what was not there”, as the court cannot rewrite a contract agreement for the parties.
Reference was made to Kurubo v. Zac – Motison (Nig.) Ltd. (1992) 5 NWLR (pt. 239) 102/106 as authority for the point being made, to the effect that parties, “are bound by the clear provisions of the agreement freely entered into.” Finally, it was submitted that Exhibit 6 is clear and the operative word found therein, ought to have been given its ordinary and grammatical meaning. The Supreme Court decision in Ibama v. S. P. D. C. (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 3641379 was relied upon as an authority on this point. We were urged to resolve the issue in favour of the appellants.
On the part of the respondent and with regard to the first issue, the learned respondent’s counsel pointed out that Exhibits 2, 3s 4A and e, are relevant in determining the final entitlement of the respondent. It was argued that the calculation made in Exhibit 3 by the appellants was erroneous and that the difference between the computations in Exhibits 3 and 4A is the outstanding payment, that is, the sum of N401, 052.31 claimed by the respondent. It was then submitted that the learned trial judge rightly found at page 99 of the record of appeal in favour of the respondent. Additionally, that it was “the appellants who tried to read into Exhibit 5 what is not there”. Furthermore, that the authority of Kurubo (supra) cited by the learned counsel for the appellants does not support the case of the appellants.
It was contended in another vein on the issue of what constitutes “annual gross salary”, and relying on definition of “gross income” as defined at page 778 of Black’s Law Dictionary to mean, “Total income from all sources before deductions”, that the learned trial judge was right and it could not have been otherwise, when he found that the sum of N34, 944.60 was the gross salary, the stipulated percentage of which must be multiplied by the period of respondent’s employment. Furthermore, that in the instant case, it was six years and five months, in order to arrive at his due entitlement upon discharge from the employment of the appellants. Again, it was pointed out, that the authorities of Opigo v. Yukwe (1997) 6 NWLR (pt. 509) 428/441, Lawal v. Morohunfola (1998) 1 NWLR (pt. 532) 111 and Ibama v. S. P. D. C. (Nig.) Ltd. (2005) 17 NWLR (pt. 954) 364/379 retied upon by the appellants are unhelpful and do not apply in the instant case. The respondent’s learned counsel also urged us to resolve this issue in respondent’s favour.

It is well settled, that parol evidence cannot be used to alter the terms of a written agreement. See U. B. N. Ltd. v. prof. Albeft Ozigi (1999) 3 NWLR (Pt. 333) 385; U. B. N. Ltd. v. Sax (Nig.) Ltd. & Ors. (1994) 8 NWLR (Pt. 361) 150; U. B. N. Ltd. v. Nwakolo (1995) 6 NWLR (Pt. 400) 127. Again, it is still good law, that parties cannot read into a document what is not there or read out of it what is not there. Thus, a court in the invocation of its interpretative jurisdiction will only pronounce on the clear wordings contained in any document. See Kurubo v. Zach – Motison (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 102. Thus, in construing a written agreement which binds and governs the relationship between parties to a contract, the court must confine itself to the plain words and ordinary meaning derivable from the provisions containing the rights, obligations and entitlements of the parties as provided therein. See Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17.
Now to the instant case. The entitlement of the respondent has been spelt out in Exhibit 6 and at page 24, it has been provided therein that, employees such as the respondent are entitled to, “25% of annual gross salary multiply by number of years served”, as gratuity. Anything, which is less or more than this will expose either the respondent or the appellants to an unfair deal. Indeed, Exhibit 6 is crucial and pivotal in this case.
Success or failure of respondent’s claim or appellant’s rejection of the same depends largely thereon. It is binding between the parties and the court will not look outside or beyond it.
Question is asked: What are salary, gross salary and gratuity?
Salary is an agreed or fixed recompense or emolument for work done or services rendered and usually paid to an employee by an employer at regular intervals, for instance monthly. As for gratuity, it is in the nature of fringe benefit given to an employee for a deserving meritorious service. On the other hand, basic salary and all entitled allowances payable to an employee constitute gross salary, while net salary is gross salary less all deductions’ Put differently; gross salary is the total amount of income from all sources before any deductions are made. Thus, gross salary can be contra distinguished from basic salary’ Hence, while the former includes the latter, the latter excludes the former’ It is thus obvious that “annual gross salary” will be higher than “annual basic salary.” The latter is subsumed under the former which encompasses the latter. So, what is the position of things in the instant case?
From the established facts in this case’ it is glaring that between the parties herein, both Exhibit 3 – Appellants’ Computation of Respondents Entitlement and Exhibit 6 – 2005 Collective Agreement of junior Staff Condition of Service’ must have been given due considerations by the learned trial judge’ For one, both documents admittedly emanated from the 1st and 2nd appellants. The parting of the ways between the parties can be traced to the different computations contained in Exhibits 3 and 4A’- Computation of Respondent’s Terminal Benefit by Davis’ Offiong & Ukah (Chartered Accountants) – dated 16th May, 2005.
It is obvious that the division became sharp over the meaning to be given to the phrase, “gross salary” when consideration is also given to the word “gratuity” as contained in Exhibit 6.
It is to be noted that the respondent herein’ in the last sentence of paragraph 7 of his statement of claim’ pleaded that reliance would be placed on Exhibit 6 at the hearing’ There was admissible evidence before the trial court that Exhibit 6 was utilized in the computation and production of Exhibit 4A even though the appellants in the concluding sentence of paragraph 9 of their statement of defence’ attempted and distanced themselves from Exhibit 6′ Nevertheless’ while DW1 – Usman Hussein, the Finance and Administrative Manager of the 1st appellant and the sole witness for the appellants was being cross-examined, he stated that Exhibit 3 – being the final payment of respondent’s entitlements, was based on Exhibit 6. It is thus not surprising and it is to be expected, when the learned trial judge observed and found at page 99 of the record of appeal as follows:
“Of all the Exhibits tendered the most German to the resolution of these issues for determination are Exhibit 3 (final settlement) showing that Plaintiff was paid the sum of $1240,531.37 as his final entitlement upon being disengaged from the services of Defendants vide Exhibit 2. In the said Exhibit 3, Deductions of Housing, unused leave and unused leave encashment are clearly showed to have been made from Plaintiff final entitlements.
Meanwhile Exhibit 6 is the collective Agreement of junior Staff condition of service, between associated maritime service Ltd., ‘ and maritime workers union of Nigeria Ams Branch. Ams are the first Defendant on record.
At page 24 of Exhibit 6, under paragraph 6, under Gratuity /End of service all grade it is stated.
5-9 years; 25% of Annual Gross salary multiplied by number of years sewed further more, in Exhibit 3, it is stated that Plaintiff served for 6 years served and 5 months before he was land off. At the top right flank of same Exhibit 3 Plaintiff gross salary is given as the sum of N34, 944.50.
Without the need of any expert evidence what this means is that the total financial benefit accurate to Plaintiff should be his gross salary times 6 years and 5 months. Also what is gross, salary if it does not include items like transport allowance, House allowance etc as clearly itemed in Exhibit 3.
I have also combed Exhibit 3 & 6 to see where it is stated that Plaintiff final entitlement had to have allowances like housing, transport and child allowances deducted to no avail. Is it not a case of defendants trying to import into Documents before the court what is not there? In this circumstance the authority of KURUBO V. Z.H.C – MOTESON NIG. LTD. (supra) cited by Defendant’s counsel is against Defendants and I also hold.
Without much ado therefore I hold that the computation done by the firm of Darb. Offiong & Ukah (Exhibit 4A) represent the actual entitlement accruable to the Plaintiff for as it is often said a labourer is entitled to his wages. (Sic)
Appellants failed and did not show how and to what extent the learned trial judge rewrote Exhibit 6, which is the binding agreement between the parties and thereby disregarded clear and “operative words as found in page 24” which “ought to be given its’ simple and ordinary grammatical meaning.” Hence, the authorities of Opigo (supra), Lawal (supra) and Ibama (supra) cited in support by learned counsel for the appellants are unavailing and unhelpful to their standpoint.
It is my humble viewpoint that in the absence of a condition of service which supercedes Exhibit 6 as a basis for computation, the learned trial judge as argued at pages 5 and 6 of respondent’s brief was right with his observations, reasoning and findings as reproduced in extenso above. Thus, the contention of the appellants, “that the learned trial judge was obliged to rely on Exhibit 6 and no more,” was also right. On the other hand, the submission that the learned trial judge rewrote, “a contract agreement for the parties” and the authority of Kurubo (supra) relied upon by the appellants are unhelpful and do not avail them.
To my mind and understanding payment of gratuity forms part of terminal benefits payable to an employee. These are sums of money which accrued or deemed accruable to an employee whose services are no longer required, withdrawn or retired. They are readily assessed or computed from the terms and conditions of employment in the agreements contained in the conditions of service. Indeed, payment of gratuity and or pension to an employee forms part of security for the future traditionally attached to both public and private employments. Thus, with regards to the award of N401, 052.31, being balance of respondent’s underpaid entitlement by appellants, I am in total agreement with the learned counsel for the respondent, “that as found by the learned trial judge, it is rather the appellants who tried to read into Exhibit 6 what is not there”. The first issue herein is hereby resolved in favour of the respondent.
On the second issue, it is the submission of the learned counsel for the appellants, that there was no iota of evidence other than the bare statement of the respondent to support the award of special damages in the sum of N50, 000.00, being legal fees awarded by the learned trial judge to the respondent. Reference was made to the case of N. N. B. Plc. v. Denclag Ltd. (2005) NWLR (pt. 916) without stating the page and Akinkugbe v. E. H. N. Ltd. (2008) 12 NWLR (Pt. 1098) 3751399 & 399. Again, citing Shell Petroleum Development Company (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 448, it was his submission that the fact that the evidence was unchallenged does not by itself constitute sufficient proof of the said special damages. We were urged to interfere by setting it aside, moreso, when the award in the given circumstances was in violation of a principle of law and that doing so, will be in the interest of justice.
We were urged to resolve this issue in favour of the appellants.
On the part of the respondent, it was argued that he pleaded and claimed in paragraphs 12 and 13 of his statement of claim, the requisite facts and reliefs prayed for therein. Additionally, that the appellants did not challenge the said averments and that the oral evidence adduced thereon by the respondent was neither countered nor controverted. Hence, according to the learned counsel for the respondent, the “tendering of a receipt was not a necessity in proving special damages”. It was then submitted in this vein, that the learned trial judge was right when he found for and awarded the sum of N50, 000.00 for costs of the action and legal fees. Reliance was placed on Dakat v. Dashe (1997) 12 NWL (Pt. 531) 48. On the requirement of “strict proof”, we were referred to MV “Caroline Maesil” v. Nokoy Invest. Ltd. (2002) 7 NWLR (Pt. 666) 587, where it was held that, “the law does not require an extraordinary measure of evidence or a special category of evidence to establish entitlement to special damages.”
That, what the rules require is credible evidence of such a character as would satisfy the court of a claimant’s entitlement to such an award. It was the contention of the learned respondent’s counsel that the host of authorities cited by the appellants, do not support their case. We were urged to resolve this issue in favour of the respondent.
The complaint of the appellants on this second issue is with regards to the sum of N50, 000.00 awarded by the trial court as special damages to the respondent in respect of legal fees charged and assertedly paid to his solicitors, when the said head of claim was not strictly proved as required by law. In the instant case, the respondent in paragraph 12 of his statement of claim pleaded that “The plaintiffs solicitors charged the sum of N50, 000.00 for legal services…” He went ahead in paragraph 13 (b) and claimed, “Fifty Thousand Naira cost of action and legal fees.”
Let me reiterate/ that special damages are such that the law will not presume or infer from the nature of the act complained of.
This is because, they do not flow or follow in the ordinary course of events. They are special and exceptional in their character’ Hence they must be specially pleaded and strictly proved. See Onuigbo v. Nwekeson (1993) 3 NWLR (Pt. 283) 533; Ekennia v. Nkpa – kara (L997) 5 NWLR (Pt. 504) 152, Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 931) 439. Thus, it has been long settled, that in order to succeed in an action for special damages, it must be strictly proved. The term “strict proof”, means no more than that the evidence adduced must ventilate and vindicate the particulars pleaded in the statement of claim. The evidence must indicatively particularize and exactly identify with clarity the averred losses with measurable exactitude. The required standard is not especially or exceptionally high to the extent of not being readily attainable. What is required is evidence which is apt and of such a magnitude that lends itself to ascertainable proclivity’ That is, amplified evidence necessary to emblazon the pleadings, provides a basis for the claim and pedestal for the computation.
Again, what determines strict proof depends largely on the given facts and peculiar circumstances of each case. Invariably, the burden in this regard is discharged when there is credible evidence that enhances proximate assessment or quantification of the alleged losses or damages. It is to be noted that proof of special damages does not revolve around documentary evidence alone. While documentary evidence remains one of the surest means to so do, it is by no means the only means. See Kurubo (supra).

The learned counsel for the appellants maintained that other than the bare statement or oral evidence by the respondent that he wants the court to order the appellants to pay him inter alia, “N50, 000.00 cost of litigation”, nothing more was adduced in proof thereof in the form of “a receipt or an acknowledgment of the said sum of money by the law firm instructed. Reliance was placed on Adim v. N. B. C. Ltd. (2010) 9 NWLR (pt.1200) 543/558, where the Supreme Court held that it would be improper for a court to award special damages on an incomplete and inconclusive facts given from memory and devoid of documentation elsewhere. It was further submitted that once the said fact was not admitted by the appellants, then, “the learned trial judge ought to have acted strictly on the evidence before him or rack thereof.” Reference was made to Unipetrol (Nig.) plc. v. Adireje (W.A.) Ltd. (2005) 14 NWLR (Pt. 496) 571. For the respondent as previously stated, it was the mainstay of his learned counsel that the learned trial judge was right when he found for, held and made the award in contention.
It is established law, that any assertion in pleadings to the effect that a party has suffered damages and any averment as to the amount or extent of the damages is deemed to have been traversed unless it is specifically or unequivocally admitted. See Produce Marketing Board v. A. O. Adewunmi (1972) 11 SC 111/24. The burden to specifically plead and strictly prove special damages is on a party who claims it. Although, the tendering of documentary evidence in the form of receipts in proof of special damages could be a good mode of discharging the burden on the plaintiff claimant, it is however not an indispensable or exclusive means of poof of special damages.
In the instant case, since no receipt evidencing payment to respondent’s counsel was tendered, it would have been more to it, if a lawyer from the said Chambers was called to testify, that the amount claimed as special damages was actually paid to them. The instant case, is one in which it is necessary to show documentary proof of the special damages in question before the determination as to whether it is grantable or not. Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate to engender its disentitlement. I am thus in tandem and at par with the dictum in F. B. N. Ltd. v. Owie (1997) 7 NWLR (Pt. 484) 744/756 where Akpabio, JCA stated thus:
“A lawyer’s professional fee is not something to be proved by mere ipse dixit.
Everybody knows that lawyers issue receipts for any money paid to them.”
It is an established principle of law that an appellate court will interfere with an award of damages made by a trial court, where it has been challenged by a complaint and established inter alia, that the award was made in violation of law and that such intervention will serve the cause and interest of justice. See: Sabru Motors Ltd. v. Rajaf Entp. (2002) 7 NWLR (pt.766) 243. Akinkugbe v. Ewulum Holdings (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) 375; Otaru & Sons v. Audu Idris (1999) 6 NWLR (pt. 606) 330.
In the instant case, while the respondent pleaded and claimed special damages predicated on fees for legal services, charged by his solicitors and “cost of action”, his oral testimony thereon in his evidence – in – chief simply goes thus, I want court to order the defendant to pay me… and N50, 000.00 cause of litigation.” (Sic) There was no breakdown, clarification, itemization or detailed explanation whatsoever regarding how the specially claimed amount was incurred or expended. Thus, the respondent’s evidence thereon is porous, scanty and bereft of invigorating circumstances and clarity. The evidence adduced fell far short of the required standard. I am thus of the humble viewpoint that the respondent did not succeed in discharging the burden of proof with regards to this head of claim.
Having given careful considerations to the arguments canvassed and powerful submissions made by both learned counsel for the parties, coupled with the authorities referred to and relied upon on this second issue, I am of the humble and respectful viewpoint, that the sum of N50, 000.00 awarded as special damages was not borne out by the evidence adduced or strictly proved as required by law. The same is accordingly disallowed and set aside for want of strict proof. See Okubara v. rbanga (1990) 6 NWLR (Pt. 154) 1; Adedeji & Sons Ltd. v. Imeh & Anor. (1996) 8 NWLR (pt. 465) 240.
In view of the foregoing, the first issue raised herein has been resolved in favour of the respondent, while the second issue is resolved in favour of the appellants. In the end result, the instant appeal partially succeeds and fails substantially. The award of N401,052.31 made by the trial court in favour of the respondent is left intact and undisturbed by me, while the award of N50,000.00 is set aside. I make no order as to costs. Ordered accordingly.

JAFARU MIKA’ILU, J.C.A: I have had the opportunity of reading in draft the lead judgment of my learned brother Massoud Abdulrahman Oredota JCA. I agree with the entire reasons in it and the conclusion reached. The first issue is resolved in favour of the respondent.
The second issue is resolved in favour of the appellants. The appeal partially succeeds. The award of N140,052.31 made by the trial court in favour of the respondent is left undisturbed white the award of N50,000.00 is set aside.
No costs awarded.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the preview of the leading judgment of my learned brother, Oredola J.C.A, just delivered. I agree with the reasoning therein as well as the conclusion that the appeal succeeds partially and fails substantially. I make no order as to costs.

Appearances

C. Anujulu Esq.For Appellant

AND

Respondent absent and unrepresented.For Respondent