SMART OKUNDAYE v. OSADEBAMWEN MOSES (2013)

SMART OKUNDAYE v. OSADEBAMWEN MOSES

(2013)LCN/6203(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2013

CA/B/411/2011

JUSTICES

HELLEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

SMART OKUNDAYE Appellant(s)

AND

OSADEBAMWEN MOSES Respondent(s)

RATIO

WHETHER OR NT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

This court will not interfere with the decision of the trial court in the present appeal. I am satisfied that the trial Judge has unquestionably evaluated and justifiably appraises the fact, it is not the business of this court, an appellate court to interfere and to substitute its own views for the view of the trial court. On this position again, see: Onuoha v. The State (1985) 1 NWLR (Pt.548) 118; Woluchem v. Gudi (1981) 5 SC 291; Enag v. Adu (1981) 11 – 12 SC 25. PER BAGE, J.C.A.

THE EFFECT OF RAISING THE DEFENCE OF SELF-DEFENCE

The Supreme Court in giving effect to the use of self defence as shield in the case of Sunday Udofa v. The State (1984) 12 S.C. 139 at pp. 166 and 167, per Karibi-Whyte JSC (as he then was), stated as follows:
‘The guiding principles of self-defence are necessity and proportion. Two questions ought to be posed and answered. These are on the evidence before the court; was self-defence necessary? If it was, was the injury inflicted proportionate to the threat offered, or was it excessive? There is no doubt if the accused can show necessity for his conduct on the facts as he reasonably believed them to be a valid defence sufficient to secure his acquittal can be made. See R. v. Nwibo (1950) 79 NLR 124 if however the threat offered is disproportionate with the force used in repelling it and the necessity of the occasion did not demand such a self-defence, then the defence cannot avail the accused. See R v. Oyeamaizu (1958) NRNLR 93. PER BAGE, J.C.A.

DEFINITION OF THE TERM “RESTITUTIO IN INTEGRUM”

What then is restitutio in integrum? Blacks Law Dictionary Eighth Edition defines it as follows:
“(Latin) Roman and Civil Law. Restoration to previous condition or the status quo. In Roman Law, a Praetor could accomplish this by annulling a contract or transaction that was strictly legally valid but inequitable and by restoring the parties to their previous legal relationship. The phrase is still sometimes used in America Law (esp. in Louisiana) when a court annuls a contract and orders restitution on equitable grounds.”The record of appeal on page 80 lines 16 – 21, the trial Judge in his Judgment stated as follows:
“… The evidence that four teeth were initially removed and the fifth one was removed later was not contradicted. The Plaintiff is therefore entitled to N250,000.00 as cost of replacement of five teeth. Where damages are on a wrongful tortuous conduct of the Defendant, it is assessed on the basics of restitutio in integrum…”PER BAGE, J.C.A.

THE MEANING AND REQUIREMENT OF STRICT PROOF OF SPECIAL DAMAGES

In respect of claim for special damages, the law requires such claim to be specifically pleaded and strictly proved. In other words, the Plaintiff should sufficiently particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlements to special damages claimed by credible evidence. See:- Neka BB Mfg Co. Ltd. V. ACB Ltd (2004) 2 NWLR (Pt.858) 521 at 527 Para. 2.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

Let me add here that as parties are bound by their pleadings, so too the Judge is bound by the pleadings and the evidence before him in his Judgment. In other words, Judgment must necessarily be based on triable issues as contained in the pleadings and evidence adduced in court. See:- Solona V. Olusanya (1975) 6 S.C. 55; Maradesa V. Military Governor of Oyo State (1986) 3 NWLR (Pt.27) 125; Olomosolo V. Oloriawo (2002) 2 NWLR (Pt.750) 113 at 724; Aforka v. A.C.B. (Nig) Ltd (1994) 3 NWLR (Pt.331) 217 at 226; Adama v. Ikharo (1988) 4 NWLR (Pt.89) 474. PER BAGE, J.C.A.

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Benin City, delivered by Honourable Justice T. Akomolafe Wilson on the 10th December, 2010.
The claims of the Plaintiff/Respondent against the Defendant/Appellant as endorsed on the Plaintiff’s statement of claim dated and filed on 5th April, 2002 is as follows:
“N1,000,000.00 special and general damages as follows;
(a) N150,000.00 general/aggravated damages for loss of teeth, loss of blood, etc.
(b) N15,000.00 as transport to hospital.
(c) N25,000.00 being money spent by Plaintiff for purchase of drugs and treatment of injury inflicted on Plaintiff by Defendant.
(d) N50,000.00 for replacement of 5 teeth damage by defendant with artificial teeth.
(e) N60,000.00 cost of cleaning the damage teeth for 20 years at N3,000 per year.
(f) N60,000.00 being cost of future treatment and drugs.
Pleadings were filed and exchanged. The Plaintiffs statement of claim is at pages 4 – 6 of the record of proceedings.
The Defendant/Appellant filed his Amended statement of defence and counter-claim dated 24th June 2008 which is at pages 7 to 9 of the records of proceedings.
The Defendant/Appellant Counter-Claimed against the Plaintiff as follows:
i. Arrears of rent owed defendant by plaintiff;       N17,000.00
ii. Damages suffered for the physical assault on
Defendant by the Plaintiff           N500,000.00
iii. Pains and sufferings flowing from the assault
on the Defendant by effect of the human bite    N1,000,000.00
= = = = = = = =
TOTAT               N1,517,000.00
= = = = = = = =
At the trial the Plaintiff gave evidence for himself and called three (3) witnesses in support of his case while the defendant gave evidence for himself in his defence and called two (2) witnesses in support of his case.
At the end of the trial the learned trial Judge gave Judgment in favour of the Plaintiff/Respondent and dismissed the Counter-Claim of the Defendant/Appellant in its entirety.
The Judgment is at pages 58 – 84 of the Record of proceedings.
The Defendant/Appellant being dissatisfied with the said Judgment, appealed to the Court of Appeal.
The Notice and Grounds of Appeal are at pages 85 – 88 of the Records of proceedings.”
The Summary of facts of this case is as follows:
“The Plaintiffs case is that he was a tenant in the premises of the Defendant/Appellant. On 3rd November, 1999, the Defendant came to the store of the Plaintiff at about 8 pm and demanded that the Plaintiff must pack out that night or he will lock up Plaintiffs store. It is the case of the Plaintiff that he told the defendant that since he was not given any quit notice, he will be taking laws into his hands if he padlocks the store. The Plaintiffs case is that the defendant then used the iron he was holding to hit his mouth, then he fell down and fainted. He found himself at the police station when he recovered, covered in blood. He lost four (4) teeth in the process
The case of the Defendant on the other hand is that the Plaintiff, his tenant was owing him rent for 17 months. He sent his sales girl to invite the Plaintiff but he refused to come. The Defendant then personally went to meet the Plaintiff in his store. They began to exchange words. As soon as the Defendant demanded for his rent, the Plaintiff pushed him backwards and he fell down over the protector. The Plaintiff jumped on the defendant while on his back and started blowing the defendant. The hand of the defendant, that is, the thumb and first finger of the left hand of the defendant was in the mouth of the Plaintiff who was chewing and biting the defendant’s fingers. One Enomah Okundaye (D.W.1) and some others separated the Plaintiff from the Defendant by pulling the hands of the Defendant from the mouth of the Plaintiff and there was blood dripping down the left hand of the Defendant. It was at the police station, Defendant knew Plaintiffs teeth had pulled out due to the force of pulling his fingers from Plaintiffs mouth.”
From the Seven (7) grounds contained in the said Notice of Appeal, the Appellant formulated the following issues for determination:
(1) Whether the Plaintiff on the evidence has discharged the burden of proof beyond reasonable doubt under Section 137 Evidence Act as required by law to be entitled to his claim for assault.
(2) If in the affirmative, whether the defence of self defence is not a complete answer to the Plaintiffs case.
(3) Whether the learned trial judge did not act in excess of her jurisdiction in granting reliefs in special damages not strictly proved and in excess of what was claimed in the Plaintiffs statement of claim.
(4) Whether the defendant did not prove his reliefs in his counter-claim against the Plaintiff to be entitled to his claims on minimum proof in the absence of a reply to defendant’s counter-claim.
On the other hand, the Respondent in his amended respondent’s brief of argument, dated 11th April, 2012, formulated the following three (3) issues for the determination of the court as follows:
(1) Whether the Respondent on the evidence before court discharged the burden of proof beyond reasonable doubt as required under Section 138 (1) of the Evidence Act to be entitled to Judgment.
(2) Whether the trial court was right in dismissing the Appellant defence as being weak and unreliable.
(3) Whether or not the trial court was right to have awarded the sum of N413,731:00 (Four Hundred and Thirteen thousand, Seven hundred and Thirty-one Naira) to the Respondent as general and special damages.
On a careful examination of the two sets of issues formulated, this court shall be guided by the four (4) issues as formulated by the Appellant for the determination of this appeal.
ISSUE ONE (1)
Whether the Plaintiff on the evidence has discharged the burden of proof beyond reasonable doubt under Section 137 Evidence Act as required by law to be entitled to his claim for assault.
Learned counsel to the Appellant submitted that, the Plaintiffs claim is based on assault occasioning harm which is a Criminal offence under Section 355 of the Criminal Code, Cap 48 Laws of Bendel State 1976 as applicable to Edo State. That claim being predicated on a criminal offence in a civil proceedings, the Commission of Crime directly in issue, therefore, the standard of proof required from the Plaintiff is proof beyond reasonable doubt as provided by Section 135 Evidence Act 2011. See: Smith Okhuarume v. Timothy Obabokor (1965/66) NWLR 84; Nwobodo v. C. C. Onoh (1984) 1 S.C. l.
Learned counsel submitted further that, the learned trial Judge treated the evidence before her as a trial in a civil case to be determined on the preponderance of evidence rather than beyond reasonable doubts as required by law though he used the right term in the Judgment.
Learned counsel further submitted that the Plaintiff was unconscious and did not know or see what happened on the day of the incident. His evidence is therefore porous and falls below the standard required by law in cases involving crimes in civil proceedings. See: Onofowokan V. The State (1987) 3 NWLR (Pt.61) 538; Famuroti v. Agbeke (1991) 5 NWLR (pt.189) 1.
In response to the arguments of the Appellant above, learned counsel to the Respondent submitted that, the Respondent discharged the burden of proof placed on him under Section 138(1) of the Evidence Act to prove his case beyond reasonable doubt. The Respondent gave a vivid account of how he was assaulted by the Appellant.
Learned counsel further submitted that the trial court made the proper finding of facts having seen, heard and observed the demeanour of the witnesses in the witness box. See:- Alh. S. A, Kazeem & Anor. v. Madam Wewimo Mosaku (2007) 750 LRCN 7878 at 1839.
On the part of the Court, it is only apposite at this stage, to examine the provisions of Section 137 of the Evidence Act, to determine whether: the Respondent (as Plaintiff) in the lower court, had discharged the burden of proof placed on him. In other words, whether he had proved his case beyond reasonable doubt before that court to have entitled him to Judgment.
Section 137 Burden of proof in civil cases:
(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fad sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so no successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
In giving effect to these provisions, the Supreme Court in case of Messrs Lewis & Peat (N.R.I.) Ltd. V. A.E. Akhimien (1976) 1 All NLR (Pt.460) stated.
“On the onus of proof referred to in the judgment of the learned trial judge, the rule may be stated thus:
(1) Where there is no issue, the question of burden of proof does not arise.
(2) On the burden of proof on the pleadings; the rule is that the burden of proof rests on the party whether Plaintiff or Defendant who substantially asserts the affirmative of the issue, (Joseph Constantine Steamship Line v. imperial Smelting Corporation (1942) A.C. 154 of 174).
(3) On the burden of adducing evidence used in this sense the burden of proof may shift depending on how the scale of evidence preponderating the burden of proof rests squarely on the party who would fail if no evidence at all or no more evidence, as the case may be, were given, on either side. In other words, it again rests… before evidence is taken by the court of trial..on the party who asserts the affirmative of the issue…”

The Supreme Court in the same decision above at pp 468 – 469 particularly at 458, paragraph ‘A’, stated as follows:
“It is on elementary principle in civil proceedings that civil cases are decided on a balance of probabilities based on preponderance of evidence, Where the Plaintiff has given evidence and called his witnesses as in this case (the Plaintiff called three witnesses) a trial judge would certainty be left with title choice on the issue of the acceptance of the facts adduced in evidence by the Plaintiff. Except in a case where the defence has, by vigorous and pin-pointed Cross-examination of the Plaintiff and his witnesses, manifestly (manifestly) demolished the case of the Plaintiff, a Defendant obviously tokes enormous risk in proceeding on a course of not adducing evidence to counterbalance the evidence of the plaintiff. Otherwise, on what material is the trial judge to balance his probability?”
The Supreme Court, restate the proper approach to be followed by a court, in employing the imaginery scale of justice in these words, in Mogaji & Ors. v. Odofin & Ors (1978) 4 SC at 93 – 94.
“When on Appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has weight and which has no weight at all.
Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the Plaintiff, if not, the Plaintiffs claim will be dismissed.”
See also: Chief M. A. Okupe V. B, O. Ifemembi (1974) 1 All NLR 375; T. Lawal Owosho & Ors. v. Michael Adebowale Dada (1984) 7 S.C. 149 at pp 107- 168; Salawu Ajide v. Kadiri Keloni (1985) 11 S.C. 124 at 159.
In T. Lawal V. Adebowale Dada (Supra) at page 168 paragraph 34A the Supreme Court restates on this issue as follows:
“In civil cases, the Onus of proof shifts from Plaintiff to Defendant and Vice Versa, from time to time, as the case progresses. Called the onus probandi, it rests on the party who would fait if no evidence at all, or no more evidence, as the case may be, were given on either side. It may shift constantly accordance as one scale of evidence or the other preponderotes.,. Pickup v. Thomas Ins. Co. 3 Q.B.D. 594; Wakelin v. L.E.S.W. RY 12 App. Cas. 41.”In the instant appeal, the main contention of the Appellant is that the claim of the Respondent at the lower court was predicated on assault occasioning harm which is a criminal offence under Section 355 of the Criminal Code, Cap 48 Laws of Bendel State 1976 as applicable to Edo State. In that instance therefore being predicated on a criminal offence in civil proceedings, the commission of crime is directly in issue, and therefore the standard of proof required from the Respondent is proof beyond reasonable doubt as provided by Section 135 Evidence Act, 2011.
On the part of the Respondent, he maintained that he had discharged the burden of proof placed on him under Section 138 (1) of the Evidence Act to prove his case beyond reasonable doubt. The Respondent gave a vivid account of how he was assaulted by Appellant. The Respondent and his witnesses gave a graphic evidence of step by step event of what took place on the day in question.
This Court had earlier on stated the Law, based on the decisions of the Supreme Court on the standard of proof in civil proceedings. The main duty of court is placing the two set of evidence before it on an imaginary scale, and to ascertain which from the set of evidence had outweigh the other. At this stage, it is not the duty of this court to evaluate evidence of the parties on appeal and to ascribe probative values to them, that is the duty of the trial court. The Supreme Court in the Case of Eze Ibeh V. The State (1997) 1 SCNL 256 at 271 stated as follows:
“On evaluation evidence, I wish to stress firstly, by saying that confirmation of concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age long judicial policy in this country that the evaluation of evidence called of the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching their demeanours. For this reason, there is a presumption that a trial judges’ decisions on facts is correct, A presumption which must be displaced by a person who seeks to upset the decision if he can. An Appellate Court for its part in such o case should always be reluctant to interfere or to substitute its views of the facts of those of the court of trial.”
See also: Balogun & Ors v. Alimi Agboola (1974) 1 All NLR (Pt.2) 66; The Military Governor of Western State v. Afolabi Lanibe & Anor (1974) 1 all NLR (Pt.2) 179; Ajao v. Ajao (1986) 5 NWLR (Pt.45) 802 and Kponugio v. Adja Kodaja (1933) 2 W.A.C.A. 24.
This court examined the Judgment of the trial court, the subject matter of this appeal. it is not in any doubt that the trial court had evaluated the evidence of the parties in the present dispute. The court had appraised all facts before it. This court will not interfere with the decision of the trial court in the present appeal. I am satisfied that the trial Judge has unquestionably evaluated and justifiably appraises the fact, it is not the business of this court, an appellate court to interfere and to substitute its own views for the view of the trial court. On this position again, see: Onuoha v. The State (1985) 1 NWLR (Pt.548) 118; Woluchem v. Gudi (1981) 5 SC 291; Enag v. Adu (1981) 11 – 12 SC 25.On this therefore, this court has resolved issue No.1 against the Appellant and in favour of the Respondent.
ISSUE NO. 2
Learned counsel to Appellant submitted that, assuming but without conceding that the (Plaintiff) Respondent proved his case beyond reasonable doubt, the (Defendant) Appellant’s defence of self defence is available to him.
Learned counsel further submitted that the Appellant in his defence at page 35 lines 4-28 of the record of proceedings gave a graphic description of the assault on his person by the Respondent. The Respondent did not controvert or shake the evidence of the Appellant while in the witness box under Cross examination. The evidence of the Appellant remain iron cast on the issue of self defence as it was not challenged, only a half hearted attempt to deny the teeth bite on the left fingers of the Appellant. The Appellant under further cross examination stated at page 39 lines 3 – 5 of the record of proceedings “I was not responsible for injury on the Plaintiff. No one on earth can be patient for his fingers to be chewed. I had to defend myself.” The law is that where there is only one side of a story which is not improbable, the court has no alternative but to believe it. See: Modupe V. The State (1988) 4 NWLR (Pt.87) 130 at 137.
Learned counsel further submitted that the evidence of the Appellant was corroborated by the DW2 in all material particular. The DW2 medically managed the Appellant and the Respondent. The DW2 testified on oath and stated at page 29 lines 27 – 29 in the record of proceedings thus: “I examined him (Appellant) I found wound, human dentitional marks on the left thumb and inside finger, so I placed him further on treatment.” The Law here is that the Onus is on the Plaintiff to dispel the defence of self defence and not for the Defendant to establish his plea of self defence. See: R.V. Oshunbivi (1961) All NLR 453; Baridam V. The State (1994) 14 LRCN 163 at 176; Onwe v. The State (1975) 9 – 11 SC 23.Learned counsel further submitted that, a failure on the Respondent to dispel or disprove the defence of self defence is a failure to prove his case beyond reasonable doubt as required by law. See: Audu V. The State (2003) FWLR (Pt.153) 326 at 336; The State v. Christopher Enabasi (1966) NMLR 241 at 246 – 247. See also Section 32 (4) of Criminal Code, Laws of Bendel State 1976 as Applicable to Edo State.
Learned counsel further submitted that the Appellant is not legally liable for the injuries which may have resulted on the person of the Respondent, it being a direct consequence of the assault of the Respondent on the Appellant by chewing into his fingers. Self defence is a complete defence to the case of Appellant and completely exonerates him from any liability. See: Femi Abeounrin v. The State (2010) 10 WRN 160 of 173 – 175; Omoreaie V. The State (2008) 18 NWLR Pt.1119) 464 at 484 to 485.
Learned counsel further submitted that evidence obtained in cross-examination on facts not pleaded by the Respondent are inadmissible in law. Therefore any findings on such evidence by the learned trial judge goes to no issue. Further, the doctrine of Restitutio in integrum was not pleaded and no – evidence founded on it or were issues joined on it. Yet the learned trial Judge made a finding on speculated fact, page 80 lines 15 – 21 of the record of proceedings. The Judgment of the Court must be set aside.
Okweiiminor V. Gbakeji & Anor 2008 All FWLR (Pt.409) 405 at 423/nos. A – F.
The Respondent reply submitted that, the Appellant in his defence and counter-claim, raised the issue of self defence. The Law is that in a plea of self defence, the burden is on the Appellant to show that he was not the aggressor. The evidence of the Appellant’s own witness DW1 at page 25 line s 26 to 27 of the record of Appeal where he said “… where the Defendant could no more condone the shouting, he pushed the Plaintiff…” The Appellant did not treat this witness as a hostile witness, he is therefore bound by the evidence. See: Elewuju V. Onisaodu (2003) 3 NWLR (Pt.647) 95 at 119.
Learned counsel submitted further that the evidence of the Appellant and his witness DW2 (the Police Doctor), called by the Appellant to support his claim of self defence lacked probative value for being a product of conjuncture, speculation and imagination, and this court should treat it as such. DW2 did not see any teeth nor examined same, he was therefore wrong to have concluded that it’s forceful withdrawal of Appellant’s fingers from the Respondent’s mouth that causes the alleged scratch marks on the Appellant’s fingers.
On the part of this court, submissions on this issue is carefully examined. The Appellant had asserted in his submission to this issue that the failure of the Respondent to dispel or disprove the defence of self defence is a failure to prove his case beyond reasonable doubt as required by law. He sought refuge on some decided authorities to drive home the argument. With respect, that is not the Law. The Law has been, and will remain, whoever asserts, must prove. This action is a civil one, and thus covered Section 137 (1) (2) (3) of the Evidence Act which provides:
“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fad sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
The burden as provided by law, on the defence of self defence, employed the Appellant in this civil cause is the same with that of criminal. The two (2) guiding principles of self defence are (a) necessity and (b) proportion.
In the instant appeal, from the facts gathered in the submissions, the Respondent was a tenant of the Appellant. The Respondent was in default of his rents. Demands failed and the Appellant sent for the Respondent to report to him in person. The Respondent refused to heed to that, and the Appellant followed him to the rented store. Bitter exchange of words ensued between the two, which later resulted to physical fracas. The Appellant said his thumb and first finger of the left hand was in the mouth of the Respondent who was chewing and biting them. The Appellant said, found in that circumstance he was entitled to use such amount of force as is reasonably necessary to defend himself against the unprovoked attack of the Respondent.
The Respondent maintained that he did not respond immediately to Appellant’s invitation, and he later came in person to him at the store. He demanded him to vacate the store that very night. As he was going to padlock the store, following the Respondent’s reply that it will amount to taking laws into his hands lf he padlocks the store, the Appellant used the iron he was holding to blow Respondent on the mouth. The Respondent sustained severe injuries and losses of five (5) teeth in all.
Having the facts as stated above, can the Appellant avail himself of the benefit of the two guiding principle in self defence, i.e. necessity an! proportion. The Appellant, yes, the Landlord, who was denied or delayed the benefit of the rent money. In pursuance of that right and following the Respondent’s indifference to his invitation followed up to the store, and such attitude of the Respondent provoked him. The Appellant may reside on necessity following the guiding principle because of his overriding right as the owner of the store. That also to say not putting the law as to the recovery of premises, arrears of rent, and mesne profit, into perspective. lf necessity may avail him, that is only one condition, proportion may not. The difference between the fingers chewed by human teeth, which caused injuries to the use of iron on the Respondent’s mouth which result into such severe injuries as to the lost of five (5) teeth at a time no doubt is quite disproportionate. The Appellant argued that his action was in self defence, as no one could not do the same with his fingers under a human teeth. The Appellant as a result only suffered injuries, while the Respondent completely lost some of his human part. No doubt this is disproportionate and the Appellant cannot use self defence as a shield. The Supreme Court in giving effect to the use of self defence as shield in the case of Sunday Udofa v. The State (1984) 12 S.C. 139 at pp. 166 and 167, per Karibi-Whyte JSC (as he then was), stated as follows:
‘The guiding principles of self-defence are necessity and proportion. Two questions ought to be posed and answered. These are on the evidence before the court; was self-defence necessary? If it was, was the injury inflicted proportionate to the threat offered, or was it excessive? There is no doubt if the accused can show necessity for his conduct on the facts as he reasonably believed them to be a valid defence sufficient to secure his acquittal can be made. See R. v. Nwibo (1950) 79 NLR 124 if however the threat offered is disproportionate with the force used in repelling it and the necessity of the occasion did not demand such a self-defence, then the defence cannot avail the accused. See R v. Oyeamaizu (1958) NRNLR 93.“I find Sunday Udofia’s case (Supra) cited above in all fours with the present appeal. The Appellant must show which he did not, in the evidence, that he was in such severe threat in the Respondent’s hand, and the only option opened to him was the use of that iron. See also other decisions of the Supreme Court on this subject. Ogbona Nwede v. The State (1985) 12 S.C. 32 at 36. Adeyinka Albert Laoye v. The State (1985) 10 S.C. 177 at pp 229 – 232 and 233 – 234. Isaac Stephen v. The State (1986) 12 SC 450 at pp. 491 – 492. The State v. Fatayi Baiyewunmi (1980) 1 N.C.R. 183: Nwanga Nwuzoke V. The State (1988) 7 NWLR 529 at 538.
From the above therefore, that the disproportionate force employed by the Appellant in repelling the threat posed by the Respondent’s action denied him the use of self defence as a weapon.
Before concluding on this issue, the Appellant contended that the learned trial Judge on page 80 lines 16 – 21 suo motu applied the doctrine of restitutio in integrum, even though not pleaded and no evidence founded on it, or were issues joined on it. The trial Judge made a finding on speculated facts. What then is restitutio in integrum? Blacks Law Dictionary Eighth Edition defines it as follows:
“(Latin) Roman and Civil Law. Restoration to previous condition or the status quo. In Roman Law, a Praetor could accomplish this by annulling a contract or transaction that was strictly legally valid but inequitable and by restoring the parties to their previous legal relationship. The phrase is still sometimes used in America Law (esp. in Louisiana) when a court annuls a contract and orders restitution on equitable grounds.”The record of appeal on page 80 lines 16 – 21, the trial Judge in his Judgment stated as follows:
“… The evidence that four teeth were initially removed and the fifth one was removed later was not contradicted. The Plaintiff is therefore entitled to N250,000.00 as cost of replacement of five teeth. Where damages are on a wrongful tortuous conduct of the Defendant, it is assessed on the basics of restitutio in integrum…”
The question remains, does the application of the basics of restitutio in integrum by the trial court in its Judgment, requires as a condition, pleadings, and evidence of parties? Or better still must parties join issues on the basics, before such application? The answer to this is not far-fetched, from the definition provided above by the Blacks Law Dictionary. The application of the basics of restitutio in integrum is an equitable relief which is ordered by the court. Being an equitable relief, it does not require to be either pleaded, or evidence founded on it, to allow its application by the court. The trial court was therefore correct in its application of the concept, and this court will not disturb it. Having said that, the defence of self-defence argued by the Appellant cannot avail him, Issue No.2 resolved against the Appellant, and in favour of the Respondent.
On Issue No. 3 whether the learned trial Judge acted in excess of his jurisdiction in granting the relief of the Respondent (then Plaintiff) in special damages not strictly proved and in excess of what was pleaded in the Statement of Claim.
Learned counsel to Appellant submitted that, the Respondent pleaded in paragraph 13 of the Statement of Claim that it will cost N50,000.00 to replace the damage teeth with artificial ones. The Appellant as (Defendant) joined issue with Respondent in paragraph 15 of his Amended Statement of Defence on this. Respondent specifically pleaded in item (d) of paragraph 18 of his Statement of Claim the sum of N50,000.00 for replacement of 5 (five) teeth damaged by Appellant with artificial ones. Under cross-examination at page 19 of the records of proceedings the Respondent testified that the cost of breach artificial teeth is N50,000.00 for one, the total cost N250,000.00.
Learned counsel submitted further that the evidence of PW4 on page 22 of the record of proceedings that there are two types of replacement of dentures. The first one is plastic or removable denture or medically acrylic. This one is not expensive it is about N2,500.00 per teeth. This other one is a fixed denture … it is called “brace”, this is more expensive it is about N30,000.00 to N50,000.00 per teeth.” For a claim in special damages to succeed, it must be specifically pleaded and strictly proved by credible evidence of such a nature or character as would suggest that he is entitled to an award under that head of special damages. See:- Oshinmirin & Ors v. Alhaji Elias & Ors (1970) 7 All NLR 153 at 156.
Learned counsel further submitted that, the burden of proving the head of claim under special damages lies on the Plaintiff/Respondent. See:- Imana v. Robinson (1979) 72 NSCC 1 at 11; Yebumot Hotel Ltd v. Okafor (2005) All FWLR (Pt 255) 1089 at 1109 – 1110 paras G-8.
Learned counsel further submitted that courts cannot grant a relief that is vaguely stated in the pleadings. Where the Plaintiffs as in this case seeks a relief from the court, it must not be a matter of speculation or doubts as to what his claim really is. The court cannot grant to a party what he has not asked for in clear terms and proved sufficiently. See:- Joe Golday Co. Ltd & 50 Ors v. Co-operative Dev. Bank Plc (2003) FWLR (Pt.153) 976 at 393; Christ the King Seventh Day Mission v. Njoku (2005) All FWLR (Pt.287) 938 at 948.
In reply, learned counsel to the Respondent submitted that the trial court was right to have awarded the Respondent N413,731.00 as special and general damages. The Respondent claim at page 4, 5 and 6 of the record of appeal, was amended by leave of court… in the amended claim paragraphs 18(a) (f) the Respondent claimed as follows:-
(a) N150,000.00 general/aggravated damages for loss of teeth, loss of blood.
(b) N15,000.00 as transport to hospital.
(c) N25,000.00 being money spent by Plaintiff for purchase of drugs and treatment of injury inflicted on Plaintiff by Defendant.
(d) N50,000 each for replacement of five teeth damaged by Defendant with artificial teeth
(e) N60,000.00 being cost of cleansing the damaged teeth for 20 years at N3,000 per year.
(f) N60,000.00 being cost of future treatment and drugs.
The trial court after a proper evaluation of the evidence given granted Reliefs A, B and D in full, while Relief C was granted in part, Reliefs E and F was refused. Learned counsel submitted further that, the Appellant in his brief of argument has no complaint against the grant of Reliefs A and C by the trial court. No issue was formulated questioning the award of N150,000.00 general damages and N13,731 special damages for purchase of drugs per paragraph 18 (a) and (c) of the claim. We therefore urge this court to upheld same. See:- Alh, Salami O. Aderounme & Anor v. Emmanuel O, Oljide (2000) 75 LRCN 425 at 440 para G.
Learned counsel further submitted that as regard Reliefs B and D of the claim, the Respondent gave succinct evidence at the trial in proof of those reliefs of his claims. We refer to pages 13 to 20 of the record of appeal. The reliefs granted were not in excess of what was pleaded. We refer to our amended Statement of Claim paragraphs 13, 15 and 18 (b) and (d). The trial court was right to have granted the reliefs sought. See:- SPDC Ltd V. Chief Gba Tiebo VII & 4 Ors (Pt.127) LRCN 1274 at 1282 Paras P-E.
The submissions of counsel on this issue is carefully examined. The grouse of the Appellant on this issue is that the award of special damages done by the trial court to the Respondent (then Plaintiff) was unjustified, excessive and arbitrarily done. His contention is that the trial court awarded to the Respondent what he had not asked for. In other words what was awarded to the Respondent is far in excess of what he pleaded in his Statement of Claim which parties joined issues upon. The Respondent maintained he had copiously pleaded all of those items granted to him by court particularized his claims and gave evidence in respect thereof.
In respect of claim for special damages, the law requires such claim to be specifically pleaded and strictly proved. In other words, the Plaintiff should sufficiently particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlements to special damages claimed by credible evidence. See:- Neka BB Mfg Co. Ltd. V. ACB Ltd (2004) 2 NWLR (Pt.858) 521 at 527 Para. 2.

The Supreme Court expounded on the meaning and requirement of strict proof of special damages as follows:-
“Special damages must be strictly proved. And the term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculations possible.”
On the claim for special damages also see:- Imona V. Robinson (1979) 3 – 4 SC 1 ; U.B.N. Ltd V. Odusote Bookstore Ltd (1994) 3 NWLR (Pt.331) 129; Joseph v. Abubakar (2002) FWLR (Pt.91) 1525; Okoronkwo v. Chukwueka (1992) 1 NWLR (Pt.216) 175.On the part of the court the pleadings of the parties contained in the record of appeal is carefully examined. On page 4 of the records the Respondents (then Plaintiffs) claim at the lower court paragraph 2 thereof contains:
“Cost of replacement of the five teeth with artificial ones N50, 000.00”
Paragraph 3
“Cost of cleaning of five artificial teeth from time to time for 60 years at N1,000.00 per year N60,000.00.
Paragraph 1 is the cost
Cost of treatment of injury N25,000.00
From the record, the Respondent had not filed an Amended Statement of Claim. However, it was under cross-examination at page 19 of the records of proceedings the Respondent testified that the cost of breach artificial teeth is N50,000 for one the total will cost N250,000.00.
Paragraph 13 of the Statement of Claim, the Respondent (as Plaintiff) pleaded thus:-
“Plaintiff avers that it will cost N50,000.00 to replace damaged teeth, with artificial ones and N60,000 to clean the artificial teeth at N3,000 per year for 20 years.”
This court had stated earlier on that from the entire record of appeal the Respondent had not filed any application to amend his Statement of Claim and or granted by the court such an amendment. The change of position as to the new cost of artificial teeth by the Respondent only came in during his evidence in chief, indeed at cross-examination.
The trial court on page 23, the 2nd paragraph, agreed that N50, 000.00 for replacement of five damaged teeth was specifically pleaded in paragraph 13 of the Statement of Claim. However the same court in error relied on evidence of PW4 which was not what Respondent pleaded, ES to new cost of replacement of the artificial teeth at N50,000.00 each one, with the total cost at N250,000.00. The trial court awarded to the Respondent N250,000.00 for the replacement of the artificial teeth, as it stated that:-
“Where damages are on a wrongful tortuous conduct of the defendant, it is assessed on the basics of restitutio in integrum. This court had earlier in this Judgment, determined the basics of the application of restitutio in integrum. This court, it is an order made by court in equity since orders made on equity will not require pleadings or evidence on them. The concept of equity inclines itself to conscience, reason and good faith, and implies a system of law disposed to a just regulation of mutual rights and duties of people in a civilized society. It does not envisage an application where specific provision of the law is made by constitution or the Act of Parliament , or decisions of Superior Courts of record on the subject.”
Earlier in this Judgment, this court cited various decisions of the Supreme Court of Nigeria on special damages which must be strictly proved. And the term “strict proof” required in proof of special damages means no more than the evidence must show the same particularity as is necessary for its pleading. The bottom line with respect of special damages is that it must be pleaded, and particularized. The question of the doctrine of restitutio in integrum which is an equitable doctrine, therefore becomes inapplicable with respect to claim for special damages. The trial court therefore, fell into a grave error by its application of the doctrine to the Respondents claim to special damages. The application by the trial court of the doctrine of restitutio in integrum to this head of claim is therefore set aside by this court. This however is not the end of the matter. The Respondent pleaded in paragraph 13 of his statement of claim cost of N50,000.00 to replace his five damaged teeth with artificial ones. N60,000.00 for cleaning the artificial teeth for 2oyears at N3000.00 per year. Respondent gave evidence in respect of the claim for N50,000.00. Although the Appellant denies paragraph 13 of the Respondent’s claim in paragraph 15 of his Amended Statement of Defence, this issue is already settled by this court in the determination of issue No. 2 on self defence. The Appellant had admitted inflicting the injuries on the Respondent which resulted in the lost of the latter five teeth only in self defence. This court has since found the injuries on the Respondent in self defence to be disproportionate. The Respondent pleaded N50,000.00 and led evidence, the trial court should have restricted itself to what was pleaded rather than going into a voyage of discovery.
Let me add here that as parties are bound by their pleadings, so too the Judge is bound by the pleadings and the evidence before him in his Judgment. In other words, Judgment must necessarily be based on triable issues as contained in the pleadings and evidence adduced in court. See:- Solona V. Olusanya (1975) 6 S.C. 55; Maradesa V. Military Governor of Oyo State (1986) 3 NWLR (Pt.27) 125; Olomosolo V. Oloriawo (2002) 2 NWLR (Pt.750) 113 at 724; Aforka v. A.C.B. (Nig) Ltd (1994) 3 NWLR (Pt.331) 217 at 226; Adama v. Ikharo (1988) 4 NWLR (Pt.89) 474.
For the authorities cited above, the trial court should not have allowed the Respondent to raise an issue which he had not pleaded. Evidence on a matter not pleaded goes to no issue and should not be allowed to be given and where given, such evidence must be ignored or disregarded the trial court as going to no issue. See – Usenfowoken v. Idowu (7969) 7 All NLR 125; Agina V. Agina (1991) 4 NWLR (Pt.185) 358 at 368.
In the final analysis on this issue this court has set aside the award of N250,000.00 made by the trial court for the replacement of the lost teeth of the Respondent. In its place this court has awarded to the Respondent N50,000.00 only which he pleaded and led evidence with respect thereto.
On Issue No. 4, learned counsel to the Appellant submitted that, cases are decided on their own merits. A counterclaim is a separate and distinct claim and a failure to file a reply to a counter claim is deemed an admission of the averment contained therein. In law as it is likened to file a statement of defence in a case where pleadings are filed. No issue has been joined and the onus on the Defendant to prove his claims minimal. See:- Bello Akanbi V. Mamuda Alao & Ors (1989) 3 NWLR (Pt. 108) 118 at 140; Olaleye V. Wema Bank Ltd (2010) 47 WRN 127 at 152.
Learned counsel further submitted that in the circumstance the trial Judge has no option but to grant the reliefs of counter-claimant as it has not been controverted and issues have not been joined on the counter-claim. See:- Oke V. Aiyedun (1986) 2 NWLR (Pt. 23) 548 at 560 – 565; Onwuka v. Omoigui (1992) 3 S.C. 89 at 127.
Learned counsel further submitted that the Appellant in his statement of defence raised the issue of assault on his person and the resultant injuries on the fingers of his left hand in paragraphs 5, 6, 7, 12, 13, 15, 17 and 20 of his Amended Statement of Defence. There was no reply by the Respondent to these averments and issues were not joined on the pleadings. The Appellant also counter-claimed against Respondent at page 9 of the Record of Proceedings, the reliefs claimed by the Appellant were not denied specifically by a reply to his counter-claim and reliefs of the Appellant.
The submission of learned counsel to the Appellant in relation to issue No. 4 is carefully examined. The main claim in the Appellant’s counter-claim relates to the injuries sustained by him on his fingers during the encounter with the Respondent. The Respondent took no reply to the counter-claim both at the lower court and in this court. The lower court in its Judgment on page 75 held that since the Respondent had proved his case beyond reasonable doubt before as envisaged by section 138(1) of the Evidence Act, the issue of self defence, which was the main plank on which the counter-claim was anchored, could no longer hold and thus dismissed the said counter-claim.
In this court again, having resolved the issue No. 2 against the Appellant, that self defence could not avail him, having adjudged that, the injuries he caused the Respondent, was disproportionate to the one he sustained his claim for counter-claim, whether answered or unanswered could not hold. The result is that the determination of the Appellant’s Issue No. 4 becomes only an Academic or Hypothetical question which will serve no useful purpose. It is trite that our courts are enjoined to adjudicate between parties in relation to their competing legal interests and never to engage in mere academic discourse, no matter how erudite or beneficial it might appear to the Applicant. See:- Union Bank V. Edionseri (1988) 2 NWLR (Pt.74) 93; Julius Berger (Nig) Ltd V. Femi (1993) 5 NWLR (Pt. 295) 612; Adelaja V. Alade (1999) 6 NWLR (pt.608) 544 at 563; Afri Bank (Nig) Plc V. Eddy Motors Ltd (2002) 13 NWLR (Pt.785) 639 at 645; Nnubia V. A.G. Rivers State (1999) 3 NWLR (Pt.593) 82 at 108. Appellant’s Issue No.4 cannot serve any useful purpose, it is thus resolved against the Appellant.
On the whole therefore, this appeal succeeds in part, only in relation to issue No. 3 on the award of special damages made by the trial court. This court set aside the award of N250, 000.00 special damages made in favour of the Respondent, in its stead, this court awarded the sum of N50,000.00 only to the Respondent, and against the Appellant.
On issues No. 1, 2, and 4, the Judgment of Hon. Justice T. Akomolafe-Wilson of the High Court of Edo State, Ekpoma Judicial Division, in Suit No.B/183/2000, delivered on the 10th of December 2010, is hereby affirmed by this court.
Parties to bear their own costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother SIDI DAUDA BAGE, JCA. I am in complete agreement with his reasoning and conclusion that this appeal be allowed in part. I must add however that having asked in paragraph 13 of the statement of claim for the sum of N50,000.00 for the replacement of his five teeth, the Respondent was bound by that Pleading.
Not only that, special damages must be strictly proved by the claimant. The evidence of P.W.4 on which the trial court based its order of N250,00000 is at best speculative as no such fixed figure was shown to have been paid or would likely be paid by the claimant on that head of claim. Special damages must be strictly proved. Special damages cannot be awarded on incomplete or inconclusive facts. MR. FELIX ADIM v. N.B.C. (2010) 9 NWLR Pt.1200 Pg.543.
I agree with my learned brother on the reduction of the amount awarded as special damages from N250.000.00 to N50,000.00. Issue 3 succeeds in part. Issues 1, 2 and 4 succeed and the judgment of the trial court except for the award of the above head of special damages is affirmed. I abide by the order as to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s conclusion that the appeal succeeds in part only in relation to issue No. 3 on the award of special damages made by the lower court.
Accordingly, I too, affirm the judgment delivered on 10/12/2010 by the lower court in Suit No.B/183/2000 save its award of N250,000.00 special damages made in favour of the Respondent and which is hereby reduced to N50,000.00. I also abide by the order relating to costs as made in the lead Judgment.

Appearances

E. U. EtukudoFor Appellant

AND

U. E. Bazuaye, O. I. UsunobunFor Respondent