NATIONAL AGENCY FOR FOOD AND DRUG ADMINISTRATION AND CONTROL v. REAGAN REMEDIES (2019)

NATIONAL AGENCY FOR FOOD AND DRUG ADMINISTRATION AND CONTROL v. REAGAN REMEDIES

(2019)LCN/13090(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/OW/101/2017

JUSTICES

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

NATIONAL AGENCY FOR FOOD AND DRUG ADMINISTRATION AND CONTROL (NAFDAC) Appellant(s)

AND

REAGAN REMEDIES Respondent(s)

RATIO

DEFINITION OF THE CONCEPT OF DETINUE

Let me shade more light on this issue of claims in detinue by examining a few decided cases:
(1) In ANANABA VS. FRI-EL ABA PALM (NIG) LTD & ORS (2016) LPELR?40463 (CA) page 28 this Court per Ige JCA stated as follows:-
?Detinue or claim in detinue is an action or suit in which the Claimant seeks to recover his personal property lawfully or wrongly taken or withheld by another person.?
(2) In FBN PLC VS. OLUFEMI SONGONUGA (2005) LPELR?7495 (CA) Clara Bata Ogunbiyi (JCA) as she then was, now JSC retired, at pages 41?42 stated as follows:-
?The concept of detinue had been defined in Black?s Law Dictionary, 5th Edition at page 405 as:- ?A form of action which lies for the recovery? of personal chattels from one who acquired possession of them lawfully, but retains without right, together with damages for the detention. Possessory action for recovery of personal chattels unjustly obtained? The action of detinue is defined in the old books as a remedy founded upon the delivery of goods by the owner to another to keep, who afterwards refused to deliver them to the bailor, ? It is necessary that the defendant should have come lawfully into the possession of the chattel either by delivery to him or by finding it. Detinue as expounded in Black?s Law Dictionary therefore is a possessory action for recovery of property unjustly detained. It is an action which lies for the recovery of property from one who acquired possession of it but retains the same wrongfully, illegally or without right, together with damages flowing from or for the detention
(3) In LABODE VS. OTUBU & ANR. (2001) LPELR-1731 (SC) p. 18 para A, the Supreme Court held:-
?Detinue is defined to be a wrongful detention of plaintiff?s chattel by a defendant which is evidenced by the refusal of the defendant or his agent to deliver the chattel upon demand. The original taking may be lawful? the detention becomes wrongful if the defendant has no reasonable justification for retaining the goods.?
(4) In KOSILE VS. FOLARIN (1989) 3 NWLR (Pt. 107) 1 at 10 para C Nnaemeka Agu JSC, one of the erudite Nigerian Jurists who adorned the Supreme Court, has this to say:-
It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the plaintiff?s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return.?
(5) In ENTERPRISE BANK LTD VS. DEACONESS FLORENCE BOSE AROSO & ORS. (2014) 3 NWLR (Pt. 1394) 256 at 298 F?H Rhodes?Vivour JSC, one of the brilliant Jurists currently at the apex Court made it clearer when he said:-
?I must explain the correct position of the law on detinue. The essence of detinue is that the defendant holds on to property belonging to the plaintiff and fails to deliver the property to the plaintiff when a demand is made. The goods must be in the custody of the defendant at the time the demand for them is made before an action in detinue can succeed. The cause of action in detinue is the refusal of the defendant to return the goods to the plaintiff after the plaintiff must have made a demand for them. A claim for detinue would fail if at the time the plaintiff made a demand the goods were not in the defendant?s actual possession. In such a case the plaintiff might have a cause of action in conversion but definitely not in detinue. The plaintiff can still sue in detinue that the defendant wrongfully or improperly parted with possession of the goods before the plaintiff made a demand for them. PER ANDENYANGTSO, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): On the 30th day of June, 2010, the Hon. Justice F. A. Olubanjo, J. of the Federal High Court, Owerri Judicial Division, delivered judgment in Suit No. FHC/OW/CS/43/2008 in favour of the plaintiff and against the defendant. (See pages 548?576 of the Record of Appeal, henceforth referred to simply as the Record).

Piqued by the said decision, the Defendant has appealed to this Court vide an 8 ground notice of appeal, filed on 22/12/2016, with the leave of this Court (pp. 580?586 of the Record). Henceforth the parties shall be referred to as the Appellant and Respondent respectively.

BRIEF FACTS OF THE CASE
The Respondent is a registered private company which inter alia, engages in drug production and compounding in Nigeria. On 3rd Sept., 2002 the Respondent?s factory and premises were closed down and sealed up by the Appellant, which, after closing the factory, initiated the prosecution of the Respondent before the Federal High Court, Umuahia, Abia State, in Charge No. FHC/UM/58C/2003?FRN VS.REAGAN REMEDIES LTD.& ANOR. The charge was dismissed.

The Appellant appealed to this Court in Appeal NO. CA/PH/293/06. The appeal was dismissed for want of diligent prosecution.
?
Meanwhile, while the legal tussle lasted, the factory remained closed under the seal of the Appellant from Sept 2002 to 13/7/2007, a period of 4 years 10 months. Eventually the Respondent gained entry into its factory in July 2007, discovered some damages and then initiated the proceedings which culminated in this appeal.

Before the lower Court, in paragraph 14 of its Amended Statement of Claim (pp. 6?7 of the Record), the Respondent claimed as follows:-
?14. WHEREFORE the plaintiff claims against the defendant
a) The sum of 5,000,000,000.00 (Five Billion Naira) only as damages.
b) An order of Court directing the Defendant to register, within 72 hours from the day Judgment is delivered in this matter, the underlisted plaintiff?s products which were being registered, required fees having been paid by the plaintiff, before the politically motivated closure of the plaintiff?s factory by the Defendant and that is:
i) Genine Paracetamol (Adult) 500mg
ii) Genine Paracetamol (Children)

125mg
iii) Baragan N.
iv) Re: Menstrogen
v) Reastomy
vi) Gentamycin eye/ear drop
vii) Betason eye/ear drop
viii) Gestin
ix) Reacoten (cream)
x) Reacoten (Tablet).?

Pleadings were filed and exchanged. Issues were joined. The case proceeded to trial. At the end, the lower Court granted the reliefs of the Respondent against the Appellant.

Now, the 8 grounds of appeal (pp. 580?586 of Record) shorn of their particulars are as follows:-
?GROUNDS OF APPEAL:
1. The learned Trial Judge erred in law when he entered judgment in special damages to the tune of N898, 881,145.20 in favour of the Respondent when this sum was not specifically pleaded and proved.
2. The learned Trial Judge erred in law when he admitted into evidence and relied upon an inadmissible valuation report prepared by PW2, which was marked Exhibit ?C.?
3. The learned Trial Judge erred in law when he admitted in evidence and acted upon an Affidavit of missing items and an extract from the police crime diary which he marked as Exhibit ?B.?
4. The learned trial Judge erred in law when he

admitted the evidence of PW1 and PW2 over and concerning alleged missing items of the Respondent due to the alleged wrongful closure of its factory by the Appellant.
5. The learned trial Judge erred in law when he admitted as a bundle, Exhibit ?A,? which comprised amongst other documentary evidence, two letters dated 24/4/2006 and 11/7/2007, respectively, written by the PW1 to the Appellant?s Director of Enforcement and a Pre-action Notice dated 18/2/2008.
6. The learned trial Judge erred in law when he awarded the sum of N898,881,145.20, ostensibly over and concerning his action which was based on the tort of detinue, when the condition precedent to filling such action was not fulfilled by the Respondent and when the evidence tendered did not prove the said tortfeasance.
7. The learned trial Judge erred in law when he ordered that the Appellant should, after a request extended to it by the Respondent for inspection of the Respondent?s premises and production line, ?conduct said inspection and effect said registration? (of the items named in the judgment) ?without requiring payment of fresh inspection

and registration fees (the Plaintiff having already paid the required fees before the unjustifiable closure of(sic)
8. The learned trial Judge erred in law when he admitted and acted upon Exhibit ?A?, a previous judgment in a criminal case, which was clearly not admissible in law, and which formed the major plank of the Plaintiffs claim before the lower Court, to enter judgment in favour of the Plaintiff against the Defendant/Appellant.?

TernaIorhaa Esq., of Counsel with Chief Sebastine T. Hon, SAN & Co., for the Appellant, settled the Appellant?s Brief of Argument filed on 4/5/2017 in which four (4) issues were formulated for determination as follows:-
?1. Whether, from the pleadings and the lawful evidence before the lower Court, that Court was right to award the sum of N898,881,145.20 (Eight Hundred and Ninety Eight Million, Eight Hundred and Eighty One Thousand, One Hundred and Forty-Five Naira, Twenty Kobo) as special damages in favour of the Respondent). [Grounds 1, 2, 3, 4 and 8 of the Grounds of Appeal]
2. Whether the learned trial Judge was right in law to have entered judgment in this case for the

Respondent, when the condition precedent to the Suit of the Respondent, which was based on detinue, was not fulfilled and when there is no lawful evidence tendered by the Respondent in proof thereof. (Grounds 5 and 6 of the Grounds of Appeal).
3. Whether the learned trial Judge was right in making order(s) that were capable of indirectly amending or annulling an existing law. [Ground 7 of the Grounds of Appeal]
4. Whether the judgment of the lower Court was correct, in view of the weight of evidence led at the trial. [Ground 9 of the Grounds of Appeal].?

Chief M. I. Ahamba, KSC, SAN, who settled the Respondent?s Brief of Argument, filed on 20/10/17 but deemed properly filed and served on 16/4/2018, adopted all, except issue 2, of the Appellant?s issues which he recast as follows:-
ISSUE 2
?Whether the trial judge was not right to have entered judgment in this case which was not based on detinue but was based on lawful evidence proffered by the Respondent on pleaded facts (ground 6).?
?
The Appellant also filed a Reply Brief on 25/4/2018 which was settled by Chief Mike A. Wodi Esq., (JP) of S.T. HON (SAN) & Co.

The Respondent?s Counsel also compiled and transmitted an Additional Record of Appeal, which was deemed properly transmitted on 16/4/2018.

The appeal was heard on 22/1/2019, on which date T. Iorhaa Esq., for the Appellant adopted the Appellant?s Brief and Reply Brief of arguments and urged this Court to allow the Appeal.

Chief M. I. Ahamba KSC, SAN, leading C. C. Okoroafor Esq., and Beatrice Peter (Miss) for the Respondent, adopted the Respondent?s Brief of argument and urged the Court to dismiss the appeal.

ARGUMENTS ON THE ISSUES
ISSUE 1
?Whether, from the pleadings and the lawful evidence before the lower Court, that Court was right to award the sum of N898, 881,145.20 (Eight Hundred and Ninety Eight Million, Eight Hundred and Eighty One Thousand, One Hundred and Forty-Five Naira, Twenty Kobo) as special damages in favour of the Respondent).? [Grounds 1, 2, 3, 4 and 8 of the Grounds of Appeal]
The complaints of the Appellant under this issue are:-
1. That the Respondent did not specifically plead with particulars the facts of special damages as required by law, relying on the

following:
(i) ADIM VS. NIGERIAN BOTTLING CO. LTD. (2010) ALL FWLR (Pt. 527) 690 at 702 para A.
(ii) UNION BANK OF NIGERIA PLC VS. AJABULE (2012) ALL FWLR (Pt. 611) 412 at 1436 paras A?C.
(iii) AHURUONYE VS. IKONNE (2015) ALL FWLR (Pt. 811) 1233 at 1297 paras H?C.
2. That the Respondent in paragraph 14 (a) of the Amended Statement of Claim, only claimed a lump sum of N5,000,000,000.00 (Five Billion Naira) only, yet the lower Court awarded special damages of N898,881,145.20 to it based on Exhibits ?B? and ?C? which were never pleaded anywhere, and without any strict proof as required by law, referring to page 527, lines 16 ? 17 of the Record and the following cases:-
(a) M.C.C. (NIG) LTD (2016) 1 NWLR (Pt. 1494) 427 at 449 paras D?E
(b) C.D.C (NIG) LTD VS. S.C.O.A (NIG) LTD (2007) ALL FWLR (Pt. 363) 1 at 43 para E
(c) Section 104(1) of the Evidence Act, 2011
(d) OMISORE VS. AREGBESOLA (2015 15 NWLR (Pt. 1482) 205 at 294
(e) ABDULLAHI VS. F.R.N. (2016) 10 NWLR (Pt. 1521) 475 at 498 paras C?D; E?H
3. That there were contradictions in the evidence of the

Respondent at the lower Court.

It was contended that PW2 under cross examination contradicted the averment of N5,000,000,000.00 when he stated that the total value as assessed by him was N898,881,145.20, referring to page 530 of the Record; that there was no pleading regarding the engagement of the services of an Estate Valuer let alone that such Valuer prepared a Report, yet an Estate Valuer and his report only surfaced in the depositions of PW1 paras 2, 3, 4 and 5 (page 480 of the Record). It was then submitted that facts relating to these pieces of evidence front loaded ought to have been pleaded and proved as frontloading does not take the place of pleadings, relying on OLAWEPO VS. SARAKI (2009) ALL FWLR (Pt. 498) 256 at 297 B-C.
Quoting from various portions of the judgment of the trial Court dealing with the admission of and reliance placed on Exhibit ?C? by the learned trial Judge, learned counsel submitted that Exhibit ?C? dealing with lost items or a list of damaged items, was not pleaded and as such the evidence of PW2 together with Exhibit ?C? should be expunged from the proceedings, relying on:-<br< p=””

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a) N. E. (NIG) LTD VS. IBAFON OIL LTD (2016) ALL FWLR (Pt. 815) 336 at 349 paras F?G
(b) UNION BANK OF NIGERIA PLC VS. AJABULE (supra) at 1426 paras E?F
(c) SUBERU VS. STATE (2010) ALL FWLR (Pt. 520) 1263 at 1273 ? 1274 paras H?A.

It was also contended that if the evidence of PW2 together with Exhibit ?C? was expunged from the record, the only evidence left will be that of PW 1 whose evidence was at variance with the pleadings, as the list of ?missing? or ?vandalized? items was never pleaded anywhere in the amended statement of claim, or if at all pleaded, no monetary values were ascribed to the items, thereby knocking off the basis of the award of special damages.
4.Incompetence of the monetary claims of the Respondent:-
It was submitted that the conduct of the Respondent in lumping or combining both general and special damages under one head was improper in law, thus making the said claim incompetent, relying on XTOUDOS SERVICES (NIG) LTD. VS. TAISEI (W. A.) LTD. (2006) ALL FWLR (Pt. 333) 1640 at 1653 B?E
5. Award of unclaimed Reliefs (Special Damages)<br< p=””

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Referring to the findings of the learned trial Judge at page 575 lines 1-7 of the Record, learned Appellant?s Counsel, relying on STANDARD (NIG) ENGINEERING CO. LTD. VS. N.B.C.I. (2006) ALL FWLR (Pt. 316) 255 at 268 B?C (SC) submitted that the learned trial Judge awarded reliefs not claimed, thereby turning the lower Court into a Father Christmas which award cannot stand in law.
6. Admissibility of a Criminal Proceeding in a Civil Matter
Learned Appellant?s Counsel submitted that the lower Court was wrong in law in admitting and relying on the Record of Criminal Proceedings in charge NO. FHC/UM/58C/2003 as Exhibit ?A? at pages 566?567 lines 1?3 of the Record, relying on:-
(a) Section 104(i) Evidence Act, 2011
(b) TABIK INVESTMENT LTD VS. G.T.B. PLC. (2011) ALL FWLR (Pt. 602) 1592 at 1607?1608 A (SC)
(c) NWABUOKU VS. ONWORDI (2006) ALL FWLR (Pt. 331) 1236 at 1251 H?1252 A (SC)
(d) ABUBAKAR VS. JOSEPH (2008) ALL FWLR (Pt. 432) 1065 at 1103 E

Learned Appellant?s Counsel invited this Court to expunge Exhibit ?A? from the proceedings of this case by the

authority of ONOCHIE VS. ODOGWU (2006) 2 S.C. (Pt. II) 153 at 163?164 paras 20?15; ZUBAIRU VS. STATE (2015) ALL NWLR (Pt. 794) 178 at 191 paras B?C and SUBERU VS. STATE (supra) and then urged us to resolve this issue in favour of the Appellant and against the Respondent.

The learned Senior Counsel for the Respondent treated the submissions of the Appellant based on the complaints arising from the different grounds of appeal from which the issue has been distilled, thus:
(i) Ground 1
That the N898, 881,145.20 awarded in favour of the Respondent was not pleaded and proved, but that the ground conceded that the sum of N5, 000,000,000 (Five Billion Naira) as damages was pleaded.
(ii) Ground 2
That the trial judge admitted Exhibit C, which was an inadmissible valuation report.
(iii) Ground 3
That the trial judge was wrong in admitting affidavit of missing items as Exhibit ?B? as the items were not pleaded.
(iv) Ground 4
That the evidence of PW1 and PW2 on the missing items was wrongly admitted.
(v) Ground 5 (sic) (8)
The Exhibit ?A? should not have been admitted since the

documents arose from a criminal trial.

Learned Senior Counsel observed that the sum total of these complaints hinge, rightly or wrongly, on pleadings and admissibility of evidence. He then submitted on what he termed ?the misconceived complaints? as they are, that the role of pleadings in suits applies equally to both plaintiffs and defendants, relying on IFEANYICHUKWU OSONDU VS. AKHIGBE (1999) 11 NWLR (Pt. 625) 1 at 16 F. Learned Senior Counsel again submitted that from the Rules of Courts and judicial pronouncements, the plaintiff avers, while the defendant traverses in his statement of defence the averments in the statement of claim, and that from these averments or assertions, and proper traverse by the parties, arise the issues of facts, relying on MESSRS LEWIS & PEAT (NRI) LTD. VS. A. E. AKHIMIEN (1976) 7 SC 157 at 162?163 and AKINTOLA VS. SOLANO (1986) 3 NWLR (Pt. 24) 598 at 623 B?D.
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It was further submitted that the appellant having traversed that the Respondent was put to ?the strictest proof? of the material averment in the statement of claim, it is estopped from adopting a position that the

Respondent did not plead any fact at all. Citing Order 13 Rule 7 (1) of the Federal High Court (Civil Procedure) Rules and ABUBAKAR VS. YAR?ADUA (2008) 4 NWLR (Pt. 1078) 465 at 535 C?G, Learned Senior Counsel submitted that the Appellant ought to have applied for further and better particulars but that it failed to do so, and should therefore be disallowed from leading evidence of those facts for which further and better particulars are required, and so did not, in its paragraphs 8 and 9 of the statement of defence, assail the assertions of the Respondent in paragraph 10 of the amended statement of claim, also relying on NWACHUKWU VS. ENEOGWE (1999) 4 NWLR (Pt. 600) 629.

Learned Senior Counsel then addressed the points earlier highlighted thus: –
1. “The award of N898, 881,145.20 as damages.? (Ground 1)
Learned Senior Counsel argued that the submissions of the Appellant?s Counsel in respect to the award of damages were deceptively false as the Appellant did not apply for further and better particulars as legally required in ABUBAKAR VS. YAR?ADUA (supra). He further submitted that the Respondent specifically pleaded items

which were missing and damaged in the factory and those blown off by the rain storm in paragraph 8 of the amended statement of claim (page 465 of the Record) which facts were treated by the appellant to be in existence only in the imagination of the Respondent.

That the submission of the Appellant at paragraph 4.77 of the Appellant?s brief has no basis in law, as it is facts and only facts that are pleaded and not evidence. In this respect, it is submitted that the Court only awards what is proved and no more, relying onKAYDEE VENTURES LTD VS. MIN. FCT (2010) 7 NWLR (Pt. 1192) 171 at 217 B?C. In this case, it is contended that apart from Exhibit ?C? there was the oral evidence of PW2, the Valuer who under cross examination was very instructive referring to page 530 of the Record. Learned Counsel quoted extensively from the evidence of PW2 under cross examination and submitted that same binds the Appellant as it was elicited by its Counsel.
?
The learned Silk contended that the inescapable consequence of the line of cross examination embarked upon by the Appellant?s Counsel was that the Appellant itself supplied the cost of

damages caused by its wrongful act at the Respondent?s Factory on which the learned trial Judge was entitled to rely in the exercise of his discretion on damages, and could not have justly ignored those facts in doing so. He stated that the evidence given during cross examination did not cover the N5 billion claimed by the Respondent and the trial Judge limited himself to the amount benevolently supplied in aid of proof through the Appellant?s Counsel?s cross examination, which figure remained unrebutted or contradicted through any counter evidence, which was supported by Exhibit ?C? which was itself evidence of pleaded facts of damages suffered by the Respondent at its Factory, which was tendered without objection.

Learned Senior Counsel then submitted that the learned trial Judge was right in accepting this piece of evidence which was not controverted and basing his decision thereon, relying on A. G. OYO STATE VS. FAIRLAKES HOTELS (NO. 2) (1989) 5 NWLR (Pt. 121) 255 at 282 H?A and AMADI VS. NWOSU (1992) 5 NWLR (Pt. 241) 273 at 284 G.

Learned Senior Counsel submitted that the averments of the Appellant in

paragraphs 8 and 9 of its Statement of Defence, that ?the facts pleaded in paragraphs 5, 9, 10, 11, 12, 13 and 14 of the statement of claim exist only in the imagination of the plaintiff, and the facts are denied,? cannot sustain any rebuttal of the Respondent?s evidence on these paragraphs, even if such rebuttal evidence was tendered, which was not conceded.

Learned Senior Counsel furthermore submitted that a party that rested heavily on the adversary?s failure to mitigate damages as mentioned in the judgment (page 171 of the Record) cannot on appeal rest on non-existence of proved damages, as the law of estoppel would estop such a party from doing so, relying on Section 169 of the Evidence Act (as amended). Counsel then submitted that the Appellant?s complaints in Ground 1 of the Grounds of Appeal are misconceived and cannot support Issue No.1 in this appeal.

?2. Complaint against the admission of Exhibit ?C?
On this point, learned Senior Counsel submitted thus: –
(i) That the complaint against the admission of Exhibit ?C? is contained in ground 2 of the grounds of appeal which is one of

the grounds out of which Issue NO. 1 was distilled (page 581 of the record); that paragraph 10 of the Respondent?s amended Statement of Claim has clearly identified the types of damages caused by the Appellant?s wrongful act of sealing of the Respondent?s Factory.
(ii) That without any application or request for further and better particulars of damages pleaded therein, the Respondent was free to counter any available evidence in proof of those facts which were, by non-traverse, even conceded to in paragraphs 8 and 9 of the statement of defence (page 465 of the record), relying on ABUBAKAR VS. YAR?ADUA (supra) and NWACHUKWU VS. ENEOGWE (supra).
Submitting further, learned Senior Counsel stated that Exhibit ?C? was the evidence of the provable value of the damages and losses pleaded in paragraphs 10 and 11 of the amended statement of claim to which the learned trial Judge limited himself as he ought in the award of damages.
He then referred us to pages 529 and 530 of the Record and submitted further that since the facts of damages have been pleaded, the lower Court was right in admitting Exhibit ?C?

as proof thereof, which was proper in view of the decision of the Supreme Court in M. C. C. VS. AZUBUIKE (1990) 3 NWLR (Pt. 136) 74 at 86 E; OROGAN VS. SOREMEKUN (1986) 5 NWLR (Pt. 44) 688 at 700 E?F. He then urged us to so hold.
(iii) It is submitted that assuming without conceding that Exhibit ?C? was inadmissible, the oral evidence of PW2 under cross examination would suffice to sustain the conclusion of the Hon. Court below, by the authority of M. C. C. VS. AZUBUIKE (supra) at page 88 B.
(iv) Referring to particulars of ground 2 of the grounds of appeal to the effect that Exhibit ?C? was not signed, learned Senior Counsel stated that same was signed at page 20 as shown in the additional Record of Appeal, that even if it is true that Exhibit ?C? was not signed since it was tendered by the maker, and without any objection, its non-signing does not render it patently inadmissible in law, the issue being its relevance, relying on ORIJA VS. OKOGUN (2009) 10 NWLR (Pt. 1150) 437 at 455 C?F. It is submitted further that in all known cases of non-signing the grounds of rejection have always been that their makers

were not called to give evidence, and which is not the case here, and against which the Appellant did not appeal.
3. Complaint against Exhibit ?B?
?Learned Senior Counsel pointed out that the complaint of the Appellant against Exhibit ?B? is that it was not pleaded or certified, being a public document. He submitted that Exhibit ?B? was admitted in the proceedings on pages 525?527 of the Record and was agreed upon by the parties and the Court below. He contended that there was an objection only to the tendering of affidavit of loss, missing and vandalized items or property of REAGAN Remedies LTD, to which Exhibit ?B? was an exhibit and the lower Court gave a considered Ruling on it at page 527 of the Record. Counsel stated that the objection was only on one ground viz, that the PW1 could not tender the document as only the police could do so since the extract emanated from the police. He then submitted that the submission of the Appellant on Exhibit ?B? has no basis in law, and that under Section 104 Evidence Act 2011, certification of document rests on custody and that in this case

the Respondent had applied for and had been given Exhibit ?B?, therefore same was under the custody of the Respondent and no longer the police. So what was tendered was the original document as submitted by Counsel to the Respondent at the lower Federal High Court which had delivered a Ruling thereon, which is unassailable (pages 526 and 527 of the Record). Learned Senior Counsel then urged us to uphold the Ruling of the lower Court on Exhibit ?B? as there is no appeal against the Ruling which is an interlocutory decision in the proceedings and ought to have been appealed against with the leave of Court, time having elapsed from the date of the Ruling, for filing the interlocutory appeal. He referred to NEWSWATCH COMMUNICATIONS LTD V. ATTA (2000) 2 NWLR (Pt. 646) 592 at 614 D?G.
4. Complaint Against the Admission of the Testimony of PW1 and PW2
Learned Senior Counsel submitted that the complaints against the testimonies of PW1 and PW2 were baseless in law, going by Ground 4 of the grounds of appeal from which Issue NO. 1 is distilled; that the complaint of the Appellant is that the evidence given by the PW1 and PW2

was not pleaded or frontloaded as in the case of Exhibit ?C?. Learned Counsel noted that the record of appeal was capable of causing confusion both to this Hon. Court and Counsel on the other side. He observed that only a part of Exhibit ?C? was copied at pages 222?229. He submitted that the full Exhibit ?C? which bears the Court?s stamp which the Appellant conveniently failed to copy is now before this Hon. Court in the Additional Record of Appeal wherein it is fully copied. He submitted that the Appellant cannot copy part of a document, make it part of the record prepared by its Counsel, and still submit that the document was not frontloaded. He queried ?How then did he come by what was copied which is, in fact, only part of what was frontloaded.? Learned Senior Counsel then submitted that the valuation report, which was partially copied at pages 222?229 of the Record, is part of what was tendered as Exhibit ?C? without objection. He then submitted further that if the Valuation Report by C. O. Ohiri was not part of the process which was filed and served on the Appellant, there

would definitely have been an objection to the tendering of the document during trial. Referring to page 529 of the Record, Learned Senior Counsel noted that there was no objection.

The learned Senior Counsel further submitted that a party cannot create a crisis situation and seek to rely on it in pursuit of his cause, relying on GREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 400 at 517. Again, that it is the responsibility of the Appellant to prepare an authentic record of appeal. This Court is therefore urged to rely on, and apply Exhibit ?C? copied in the additional record in the evaluation of PW2?s evidence.

Regarding the alleged wrong admission of the evidence of PW1 and PW2 by the lower Court, learned Senior Counsel submitted that the two witnesses adopted their depositions and tendered documents. So there is no basis in law for declaring their testimonies which were filed and served as illegal. He said what remained was the attachable weight i.e. the probative value of the purely legal evidence; but that the complaint of the Appellant is not on probative value but on admissibility. He therefore urged us to hold that the complaint of

the Appellant against the admissibility of the evidence of PW1 and PW2 lacks merit and to discountenance same.

As to the complaint of the Appellant against the use of the words ?special damages? while making the award by the trial Judge, which ought to have been specifically pleaded and strictly proved by the Respondent at the lower Court, going by the authorities of ADIM VS. NBC LTD (2010) ALL FWLR (Pt. 527) 690 at 720; UNION BANK NIGERIA PLC VS. AJABULE (2012) ALL FWLR (Pt. 611) 1413 at 1456 A?C and 1428 A?B; and AHURUONYE VS. IKONNE (2015) ALL FWLR (Pt. 811) 1233 at 1296?1287 H?C, learned Senior Counsel submitted that this is a complaint of an error of law which requires a ground of appeal of its own, rather than making it a particular to a ground of appeal which does not make it an arguable issue in this appeal. Learned Senior Counsel noted that in the instant appeal, this complaint was rendered as particulars (i) and (vii) out of seven particulars of ground one of the grounds of appeal (page 581 of Record) and cited OGBONNAYA VS. ADAPALM (1993) 5 NWLR (Pt. 191) 147 at 156 in support. He then submitted that the

award of ?special damages? is an issue of law and therefore incompetent before this Hon. Court in which it is not a ground of appeal, and so ought to be discountenanced by this Court and urged us to so do.

The learned Senior Counsel further submitted that the ?special damages? as contained in the judgment is an expression which originated from the trial Judge, and not from the pleadings or presentation by the Respondent. He submitted that what the Respondent pleaded was ?damages? simpliciter, which in law limits the plaintiff to award of general damages based on the discretion of the trial Court exercised on proven facts and the surrounding circumstances before the trial Court. Learned Senior Counsel contended that to deny a party a remedy for an uncontested injuria as exists in the instant case would negate the principle of ?ubi jus ubi remedium? affirmed as applicable in Nigeria in the case of BELLO VS. A. G. OYO STATE (1986) 5 NWLR (Pt. 45) 82, which negation would enthrone justice by technicality against the trend of substantial justice towards which the Courts now tend. Furthermore, that it would not be

in accord with the ends of justice to punish the Respondent as a result of what is clearly a wrong choice in the use of words by the Judex in which the Respondent had made no impute, or over which he had no control, and which has not occasioned any miscarriage of justice.

In respect to the three judicial authorities cited and relied upon by the Appellant above, learned Senior Counsel submitted that these cases are fundamentally distinguishable from the present case in that each of the decisions were based on a party?s failed pleadings and insufficiency of proof of evidence to justify the amount claimed i.e. on the acts or omission of a party, and to apply them in this appeal would go contrary to the decision in ADEGOKE MOTORS LTD VS. ADESANYA (supra), which clearly decided that the efficacy of a decision as a precedent depends on the fact and the law actually decided in the previous case. Learned Senior Counsel then urged us to resolve issue 1 in the affirmative and consequently dismiss the appeal.
5. Complaint against the admission of Exhibit ?A? in the proceeding.
(i) Learned Senior Counsel stated that the complaint against

Exhibit ?A? came through Ground 5 of the Grounds of appeal out of which the Appellant had purported to have distilled Issue NO. 2 of the Appellant?s Brief of Argument already dealt with. He then submitted that two issues cannot be distilled out of the same ground which ground complains only against the admission of Exhibit ?A?. He then urged us to discountenance any argument against the admission of Exhibit ?A? in this appeal.
(ii) Regarding the judgment of this Court in appeal NO. CA/PH/293/2006 copied at page 444 of the Record, learned Senior Counsel submitted that there is a certification by the Registrar of the Court of Appeal at the left hand part of the page, with cash office stamp showing 18/7/2007 as the date of certification. He also submitted that of all the bunch of documents admitted as Exhibit ?A? to which there was no objection, only the judgment of Tsoho, J and the Court of Appeal decision dismissing the Appellant?s appeal were relied upon and applied by the trial Court.
In respect to invitation to open the factory, Counsel referred to pages 448 and 449 of the Record and

submitted that they both bear the Appellant?s receipt stamp dated 28/4/2006 and 17/7/2007 which did not require any certification, as they were the Respondent?s copy evidencing delivery of the letter to open the factory.

Learned Senior Counsel further submitted that the lower Court did not rely on testimony in the judgment in deciding this case but only the judgment to show that the Appellant?s allegations against the Respondent were unjustified, and then urged us to discountenance the submissions of the Appellant?s Counsel at paragraph 4.38.

Finally on this point, it was submitted that it is trite that when parties and the Court agree on a procedure to be adopted in the hearing of a suit neither of them may complain about it on appeal, reliance being placed onNOIBI VS. FIKOLATI (1987) 1 NWLR (Pt. 52) 619 at 626 E; BUHARI VS. INEC (2008) 19 NWLR (Pt. 120) 246 at 349; OJIEGBE VS. OKWARANYA (1962) 1 ALL NLR 605. He submitted that the agreed procedure by which Exhibit ?A? was admitted is binding on the parties, as none of them would adopt different procedures at the lower Court and before the Court of Appeal, relying

on AJIDE VS. KELANI (1985) 3 NWLR (Pt. 12) 248 at 269 C?D.

Reply Brief
The Respondent had attacked the pleadings of the Appellant at the Court below as having not properly traversed the assertions of the Respondent in its amended statement of claim.

In the reply brief, the Appellant submitted that it properly traversed the averments of the Respondent at the Court below and that it was the duty of the Respondent as claimant to properly aver and plead all relevant facts and then prove same by credible evidence and not that of the Appellant as defendant. Reliance is placed on ODOM VS. P.D.P (2015) ALL FWLR (Pt. 773) 1962 at 1987 (SC). Yet it is submitted further that the burden rested on the Respondent throughout to plead facts and adduce evidence in proof of its claims, which it failed to do at the lower Court, and that the Appellant had no duty to apply for further and better particulars since the Respondent succeeded in pleading only scanty facts, which negates the principle of pleadings in trials conducted by pleadings, relying on BELGORE VS. AHMED (2013) 8 NWLR (Pt. 1355) 60 at 95 G?96 A (SC).
?
It is further submitted that

reliance on ABUBAKAR VS. YAR?ADUA (supra) by the Respondent does not absorb it of its responsibility of pleading and proving its special damages. Relying on UBN PLC VS. AJABULE (2012) ALL FWLR (Pt. 611) 1413 at 1436 A?C and NGILARI VS. MOTHERCAT LTD (1999) 13 NWLR (Pt. 636) 626 (SC) learned Appellant?s Counsel urged us to dismiss the Respondent?s claims of special damages.

As to award of lesser claims as canvassed by the Respondent, and the case ofKAYDEE VENTURES LTD VS. MINI FCT (2010) 7 NWLR (Pt. 1192) 171 at 217 B?C, it is submitted that same is not applicable to the facts of this appeal and that the submission of the Respondent that it was the Appellant which elicited evidence on the amount of N898,881,145.20, it was submitted that the Respondent was not absorbed from responsibility of pleading and proving strictly its special damages, relying on XTOUDOS SERVICES (NIG) LTD VS. TAISEI (WA) LTD (2006) ALL FWLR (Pt. 353) 1640 at 1653 B?E. It is again submitted that the evidence elicited during cross examination on facts not pleaded goes to no issue, relying on OMISORE VS. AREGBESOLA (2015) ALL FWLR (Pt. 813) 1673 at

1735 (SC); OLORA VS. ADEGBITE (2013) 1 NWLR (Pt. 1334) 40 at 60 (SC); and OKWEJIMINOR VS. GBAKEJI (2008) 5 NWLR (Pt. 1079) 172 (SC).

It is further submitted that a defendant need not challenge a plaintiff?s claims for special damages as the duty to plead and strictly prove same lies on the plaintiff, challenge or no challenge, relying on NNPC VS. CLIFCO (NIG) LTD (2011) ALL FWLR (Pt. 583) 1875 at 1896 E?F.

Learned Appellant?s Counsel submitted that the evidence of PW2 is not admissible especially as touching the evaluation Report tendered as Exhibit ?C?. He highlighted many portions of the evidence under cross-examination and submitted that the evidence of PW2 is hearsay which should be rejected by the Court, relying onUWA PRINTERS LTD VS. INVESTMENT TRUST CO. LTD (1988) 12 SCNJ (Pt. II) 102; ANPP VS. USMAN (2011) ALL FWLR (Pt. 463) 1292 at 1343 G?H (CA). He then urged us to reject the evidence of PW2 based on OKEREKE VS. UMAHI (2016) ALL FWLR (Pt. 833) 1902 at 1929 F?G (SC).

Again, relying on NALADO VS. ALI (2006) ALL FWLR (Pt. 293) 220 at 249 G (CA); OKOROAFOR VS. MINISTER OF INTERNAL AFFAIRS (2004) ALL

FWLR (Pt. 209) 1108 at 1115 H (CA) and NNPC VS. CLIFCO (NIG) LTD (supra) it was submitted that the claimant must plead and prove its claims for special damages, whether or not a statement of defence is filed; even if the defence does not testify and even if the defendant admits the plaintiff?s claims, respectively.

Learned Appellant?s Counsel submitted that Exhibit ?C? was neither pleaded nor frontloaded rendering it inadmissible, relying on A.C.N. VS. LAMIDO (2012) 2 SC (Pt. II) 163; INEC VS. INIAMA (2008) 8 NWLR (Pt. 1088) 182 at 205 G?206 G (CA); ADEYEFA VS. BAMGBOYE (2013) ALL FWLR (Pt. 673) 1832 at 1841 F?G (SC) and NWANJI VS. COASTAL SERVICES (NIG) (2004) ALL FWLR (Pt. 219) 1150 at 1169 (SC).

Learned Appellant?s Counsel then analyzed Exhibit ?C? in detail, highlighting what he termed ?manipulations and doctoring? therein contained and invited us to re-evaluate and reject same, relying on CPC VS. OMBUGADU (2013) ALL FWLR (Pt. 706) 406 at 453 (SC) and SALZGITTER STAHL GMBH VS. T.D.I LTD (2010) ALL FWLR (Pt. 529) 1024 at 1057 E (SC).

In respect to Exhibit ?B? it was submitted that it formed a ground of objection at the lower Court and Ground 1 in this appeal and so the submission of the Respondent that it is not a ground of appeal is not borne out of this record of appeal. Again that the fact that the Appellant did not appeal against the interlocutory Ruling of the lower Court does not preclude it from appeal in the substantive appeal, relying on ONWE VS. NWAOGBUINYA (2001) 1 SCNJ 157 and OKOBIA VS. AJANYA (1998) 5 SCNJ 95.

In respect to the use by the learned trial Judge of the expression ?special damages? which ought to have been a ground of appeal of its own and not a particular of ground 1, it is submitted this is a bold attempt to twist the record, as the Appellant in Ground 1 of its ground of Appeal specifically attacked the classification of damages awarded as special damages, with 7 particulars supporting the ground 1.

In conclusion on this issue, it is submitted that the submissions of the Respondent?s learned Counsel are general in nature and did not answer the issues raised by the Appellant and we are urged to discountenance same as it cannot take the place of evidence.<br< p=””

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RESOLUTION OF ISSUE 1
This issue, distilled from grounds 1, 2, 3, 4 and 8 of grounds of appeal, attacks the judgment of the lower Court in the following areas:-
(i) the award of N898, 881,145.20 as special damages to the Respondents;
(ii) the admission of Exhibit ?C? alleged not to have been pleaded, unsigned and a documentary hearsay evidence;
(i) the admission of Exhibit ?B? as public documents which were neither certified nor pleaded;
(ii) the admission of the evidence of PW1 and PW2 alleged to be inadmissible; and
(iii) the admission of Exhibit ?A? alleged to be inadmissible.

I shall treat the above seriatim.
(i) Award of N898, 881,145.20.
The lower Court in awarding the above sum to the Respondent described same on pages 574?575 as follows:-
?In conclusion therefore, I hold that the plaintiff has proved its claim in part and make the following orders:
The sum of N898, 881,145.20 (Eight Hundred and Ninety Eight Million, Eight Hundred and Eighty one Thousand, One Hundred and Forty Five Naira, Twenty Kobo) is hereby forthwith awarded to the plaintiff payable

by the Defendant as special damages for loss and damages of machines, equipments, raw materials, finished products and factory premises incurred due to the unjustified closure of plaintiff?s Factory by the Defendants between the 27th of May 2003 and 12th July 2007
It is to be observed that the Respondent claimed the sum of N5,000,000,000.00 (Five billion Naira) only as damages. (See particulars of claim in the Amended Writ of Summons and paragraph 14 (a) of the Amended Statement of Claim at pages 2 and 6 of the Record respectively). Nowhere in the pleadings and evidence did the Respondent claim special damages. It was in the course of awarding the sum of N898, 881,145.20 to the Respondent as the amount proved by evidence before him that the learned trial Judge introduced the word ?special? to the damages claimed by the Respondent. This apparently stems from his findings that through the testimony of PW2 and Exhibit ?C? the amount of N898,881,145.20 only was proved out of the N5,000,000,000.00 claimed by the Respondent.
?It is my candid view that the word ?special? introduced by the learned

trial Judge does not adversely affect the claims of the Respondent which had been proved before the lower Court. This is because the Respondent (as plaintiff) did not set out to claim special damages and therefore not under legal obligation to specifically plead and strictly prove same. Furthermore, I hold the firm view that the Respondent who had no control over the choice of words used by the learned trial Judge while writing his judgment, could not be made to suffer for the use of the word ?special? added to damages claimed by the Respondent. Since the Respondent had adequately proved its case at the lower Court as found by the trial Judge, I hold that the use of the word ?special? introduced by the learned trial Judge cannot adversely affect the award. I also hold that there is no miscarriage of justice occasioned by the use of the word ?special? before ?damages?. The complaint or attack of the Appellant in respect of the description of the damages awarded to the Respondent by the learned trial Judge is therefore unfounded.
(ii) Admission of Exhibit ?C?
The grouse of the Appellant about

Exhibit ?C? is that it was not pleaded; it was not signed; and that it was documentary hearsay evidence. A cursory look at paragraphs 10 and 11 of the Amended Statement of claim (page 6 of the Record) indicates that the Respondent pleaded documents, it would rely upon at the trial. These documents were described as ?The inventory of the losses which the plaintiff has suffered
By the very nature of the contents of Exhibit ?C? it would be cumbersome to particularize same due to its sheer volume. The lower Court which listened to PW2 through whom Exhibit ?C? was tendered especially during cross examination, found him to be a witness of truth and accepted Exhibit ?C? and acted on it. I find nothing untoward in this finding, therefore there is no necessity or duty on this Court to disturb same. I so hold.
(iii) Admission of Exhibit ?B?
The Appellant has strongly submitted that the contents of Exhibit ?B? were public documents which required certification for them to be admissible in Court. The learned trial Judge at page 557 of the Record described these

documents as ?police extract? and affidavit of loss, missing or vandalized property of Reagan Remedies Nigeria Limited and affidavit of Loss, Damage or Expired Materials of Reagan Remedies Nigeria Limited all dated 17th July, 2007. These documents obviously do not fall under the ambit of public documents. Public documents are defined under Section 102 of the Evidence Act 2011 (as amended) as follows:-
?102. The following documents are public documents:
(a) Documents forming the official acts or record of the official acts of:- (i) the sovereign authority; (ii) official bodies and Tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.?
Section 103 of the Evidence Act clearly states ?all documents other than public documents are private documents.?
Section 104 of the Evidence Act 2011 (as amended) demands all copies of public documents to be certified. Since the documents contained in Exhibit ?B? are not copies of public documents, they need not be certified. Therefore the attack on

Exhibit ?B? as being inadmissible has no firm foundation. I so hold.
(iv) Admission of the evidence of PW1 and PW2
The main grouse of the Appellant about the evidence of PW1 and PW2 is that it was inadmissible as they were not pleaded and not front loaded. The Appellant in paragraph 2.5 of its Brief of Argument at page 2 stated thus:-
?2.5. In accordance with the Rules of the lower Court, the Respondent front loaded the sworn deposition of Dr. Igwe N. Christian (Managing Director of the Respondent)
Yet a complaint follows the above statement thus:-
?A quick comparison of this deposition of the Respondent?s star witness with the Amended Statement of Claim on pages 4?7 will reveal that much of what was contained in the said written deposition was not pleaded.?
It is trite, with due respect to the learned Appellant?s Counsel, that evidence is never pleaded in pleadings. The law is, even elementary without citation of authorities, that it is facts and only material facts that are pleaded. See:-
(1) OKWURU VS. OGBEE & ORS (2015) LPELR?40682 (CA) at page 16.<br< p=””

</br<

(2) KPEKU & ORS VS. SIBEKENEKUMU & ORS (2013) LPELR?20703 (CA) at page 39.
(3)YUSUF & ANR VS. AKINSUNNOYE (2013) LPELR?20531 (CA) at page 27.
Therefore the quarrel of the Appellant with the evidence of PW1 and PW2 has no basis.
(v) Admission of Exhibit ?A?
Learned Appellant?s Counsel has argued that Exhibit ?A? is inadmissible. This Exhibit is a bundle of 8 documents copied on pages 556?557 of the Record which are:-
?(i) The Plaintiff?s Certificate of Incorporation
(ii) Letters dated 1st March, 1996, 7th June, 1996; and 7th April, 2000 written by officials of the Defendant to the Plaintiff?s Managing Director conveying approval to the Plaintiff (by the Defendant) of manufacture of suspension and dry powder, tablets and ointments parenterals, antibiotic capsules, eye and ear preparations subject to maintenance of god manufacturing practice at all times? and registration before distribution for sale.
(iii) a. Proceedings and Judgment in Charge No. FHC/UM/58C/03 FEDERAL REPUBLIC OF NIGERIRA V. REAGAN REMEDIES LIMITED & ANOR.
b. Letter dated

30th April, 2003 written by the Pw1 to the Defendant?s Director of Enforcement requesting for permission to enter the Factory to effect repairs caused by the rain.
c. Copies of documents and receipts showing that the Plaintiff applied for registration of various products and a letter written by the Defendant?s Director of Enforcement to PW1 stating that he manufactured, distributed and sold substandard pharmaceutical products.
(iv) Record of Proceedings, Ruling and Order of the Federal High Court Umuahia Division dated 31st March, 2006 in Charge No. FHC/UM/58C/03 per H.T. Soba J. wherein the Court granted the leave to the Pw1 to open the Plaintiff?s factory.
(v) Notice of Leave to Appeal, Summons to settle Records of Appeal in respect of Charge No. FHC/UM/58C/03.
(vi) Record of Proceedings in suit No. CA/PH/293/2006 FEDERAL REPUBLIC OF NIGERIA V. REAGAN REMEDIES & ANOR. dated 10th July, 2007 wherein said Appeal was dismissed and Revenue Collectors Receipt evidencing payment for same.
(vii) Two Letters dated 24th April, 2006 and 11th July, 2007, written by the PW1 to the Director in charge of Enforcement in the

Defendant?s Agency requesting for the Agency?s presence at the reopening of the Plaintiff?s Factory.
(viii) A letter dated 18th February, 2008 written by the Plaintiff?s Solicitors to the Director General of the Defendant?s Agency giving one month?s notice of its intention to sue the Defendant.
(ix) A list of missing and vandalized equipment and machines and damaged or expired raw material.?

I have scrutinized the documents and I agree with the learned Appellant?s Counsel that document No. 111 (Proceedings and judgment in charge No. FHC/UM/58C/03 FEDERAL REPUBLIC OF NIGERIA VS. REAGAN REMEDIES LIMITED & ANOR) which is a record of proceedings in a criminal matter is inadmissible. See ABUBAKAR & ANOR. VS. JOSEPH & ORS (2008) LPELR?48 (SC) at page 49 paras C?F where the Supreme Court has this to say:-
?I will pause here to state on the decided authorities, that the admission of the said (Exhibit D) the criminal proceedings in a civil trial or proceeding, was wrong. Such proceedings, was certainly inadmissible in any event. In other words, record of proceedings in a

criminal proceeding, should not be admitted in evidence in a civil proceeding.?
See also OYEWOLE VS. KELANI (1948) 12 WACA 327; OKUNOREN VS. U.A.C. LTD 20 WLR 25 at 27; NWACHUKWU VS. EGBUCHU (1990) 3 NWLR (Pt. 139) 435.
Therefore, I hold that the admission of the Criminal Record of Proceedings amongst other documents is wrong, and the trial Judge was in error to have admitted and relied on it in his judgment. It is trite that both Counsel and the Court had a duty to reject the document as it was inadmissible. This Court has the duty to expunge, and I hereby expunge the wrongly admitted record from the proceedings. The effect is that it is regarded as if it had never been admitted in the eyes of the law.

All the other documents in Exhibit ?A? however, are admissible and were properly admitted by the lower Court.
?
I hold that the exit of the Criminal Record of proceedings from the proceedings of this case does not adversely affect the judgment of the trial Court as there is abundance of evidence which established the claims of the Respondent. I therefore resolve issue 1 in favour of the Respondent and against the Appellant.<br< p=””

</br<

ISSUE 2
?Whether the learned trial Judge was right in law to have entered judgment in this case for the Respondent, when the condition precedent to the suit of the Respondent, which was based on detinue, was not fulfilled and when there was no lawful evidence tendered by the Respondent in proof thereof (Grounds 5 & 6 of the Grounds of Appeal).?

Learned Appellant?s Counsel contended that the claims of the Respondent at the lower Court were based on detinue, and then submitted that since the conditions precedent for the success of such claims were not met, the Respondent was not entitled to the award of the sum of N898,881,145.20 given to it.

Learned counsel relied on UAC. (NIG) PLC VS. AKINYELE (2012) 15 NWLR (Pt. 1322) 1 at 20 paras E?H, and submitted that for a Plaintiff to succeed at the Court below in detinue, it must adduce credible, admissible and sufficient evidence to establish the following facts:
(a) He is the owner of the chattel or property in question;
(b) He has an immediate right to possession of the property/chattel;
(c) That the Defendant is in actual possession of the property or

chattel;
(d) He has made proper demand on the defendant to deliver up the property/chattel to him; and
(e) The defendant, without lawful excuse, has refused or failed to deliver up the property/chattel to him.

Learned Appellant?s counsel submitted that the Respondent in this case has failed to establish all these requirements, especially that there were no demand letters on the Appellant to deliver up the property/chattel to it, relying on GUINESS (NIG) PLC VS. BOSE STORES LTD (2007) ALL FWLR (Pt. 393) 163 at 176 paras F?A.

In respect to the two demand letters (described as ?purportedly given?) by the Respondent to the Appellant, it was contended that they were infested with two viruses thus:-
Virus (a): The two letters copied on pages 220?221 of Record were not pleaded anywhere in the amended statement of claim contained on pages 4-7 of the Record. Yet they were amongst the documents wrongly admitted as Exhibit ?A? by the trial Judge. He submitted that the evidence of PW1 and the two demand letters having not been pleaded, amounted to nothing, relying on FALEKE VS. INEC (2016) 18 NWLR

(Pt. 1543) 61 at 150 paras A?B and C.D.C. (NIG) LTD VS. S.C.O.A. (NIG) LTD (supra), dealing with the principle of law that evidence led on facts not pleaded goes to no issue.
Virus (b): that the two demand letters cannot be validly described as demands given by the Respondent to the Appellant. Reason? That the two letters are private documents kept as public records, requiring certification as such true copies thereof, for them to be admissible in law, relying on OMISORE VS. AREGBESOLA (supra) and ABDULLAHI VS. FRN (supra). He further submitted that since the two letters admitted as part of Exhibit ?A? were not certified, they were wrongly admitted by the learned trial Judge. Learned Counsel also repeated his submissions in issue 1 and urged us to hold that the Respondent woefully failed to prove its case on detinue and therefore was not entitled to the award of damages given to it, and then urged us to resolve issue 2 in favour of the Appellant and against the Respondent.
?
For the Respondent, learned Senior Counsel Chief M. I. Ahamba KSC, SAN, argued the recast issue 2 simultaneously with issue 2 of the Appellant which was distilled from

Grounds 5 and 6 of the grounds of appeal in the following manner:-
1. That no single issue can validly be distilled from Grounds 5 and 6 of the Grounds of Appeal as has been done by the Appellant in their brief of argument, for the reason that Ground 5 is a complaint on admission of unpleaded evidence while Ground 6 is based on detinue proceedings. It was submitted that the two grounds having been mutually exclusive, cannot have a single issue validly distilled therefrom, especially that at the lower Court, no issue of detinue was raised, canvassed and determined and so cannot be raised before us at this stage with leave of Court.
Learned Senior Counsel cited UOR VS. LOKO (1988) 2 NWLR (Pt. 77) 430 at 441 C?D; IDIKA VS. ERISI (1988) 2 NWLR (Pt. 78) 563 at 579 H and TIAMIYU VS. OLAOGUN (2009) ALL FWLR (Pt. 451 960 at 978 A, and submitted that both grounds 5 and 6 being incompetent should be struck out together with the issue 2 distilled therefrom. He so urged us to do, at this preliminary stage.
2. On alternative argument on Appellant?s issue 2,the learned Respondent?s Senior Counsel submitted that the argument of the Appellant on

detinue under issue 2 is misconceived. He submitted that detinue is a form of action under common law which used to hold sway in our jurisprudential development and ruled the judicial waves but now no longer applicable to the cause of action. He relied on BELLO VS. A. G. OYO STATE (1986) 5 NWLR (Pt. 45), which he quoted in extensor and contended that by the position taken by the Appellant in this appeal, this Court is being called upon to hold that the trial Judge ought to have denied the Respondent a hearing of his suit, and even if his case is cogent, to deny him the judgment for noncompliance with an obsolete and mundane form of action, called detinue, contrary to the extant Supreme Court decision in BELLO VS. A. G. OYO STATE (supra). Furthermore, that reliance on noncompliance with a form of action is no longer fashionable or even acceptable as a defence to challenge the adjudicatory competence of a Judex, emphasizing that such an approach is in fact prohibited.
It is further submitted that all that is necessary now is for a statement of claim to contain averments of fact exposing some legal wrong done to the plaintiff, which the Court ought to

remedy, as contained in the amended statement of claim in this case.
3. That, assuming without conceding that detinue was still applicable as a form of action to defeat a claim, and that, as such, a demand was imperative, the Appellant?s submission will still not be sustainable for the following reasons:-
(a) The factory is not a chattel and there is no dispute as to ownership;
(b) Adequate demand was made through letters dated 11th July, 2007 and copied at pages 448 and 449 of the Record;
(c) The judgment of the Federal High Court in Suit NO. FHC/UM/58C/03 which acquitted the Respondent had established the Respondent?s right to immediate possession to which the Respondent was denied.
The learned Senior Counsel then urged us to hold as follows:-
(a) That Appellant?s issue 2 is incompetent as a result of being purportedly distilled from ground 6 without leave of Court to appeal on issue not taken before the trial Court, and being a complaint as to non-compliance with a form of action contrary to Supreme Court decision on the non-applicability of forms of action in our Court proceedings to defeat a case;

(b) That issue No. 2 is purportedly distilled from two grounds of appeal which are mutually exclusive to each other and, consequently incompetent to, together, ground an issue in this appeal;
(c) That grounds 5 and 6 of the grounds of appeal are not severable at this stage or at all, in their illegal joint grounding of the Appellant?s issue No. 2; and
(d) That the Appellant?s issue No. 2 is ambiguous and not capable of being resolved one way or the other, without creating confusion.

Learned Senior Counsel then urged us to strike out Issue No. 2 of the Appellant as being incompetent or alternatively to dismiss the issue with the supporting grounds.
4. Respondent?s issue No. 2 distilled ex abundanticautela. (Ground 6 of the ground of appeal)
The learned Senior Counsel on this issue urged us to resolve same in the affirmative and dismiss the ground 6 of the grounds of appeal because the trial Judge?s decision was based on thorough consideration of the pleadings of the parties, and evidence proffered thereon.
Reply Brief
In his introductory reply, the learned Appellant?s counsel submitted that leave is not

necessary before filing Ground 6 as it is an attack on the jurisdictional competence of the Court below to entertain the suit, relying on
(i) APC VS. NDUUL (2018) 2 NWLR (Pt. 1602) 1 at 27 (SC)
(ii) NYESOM VS. PETERSIDE (2016) ALL FWLR (Pt. 842) 1513 at 1618 D (SC)
(iii) AGBULE VS. W.R. & P. CO. LTD (2013) 6 NWLR (Pt. 1350) 318 at 360 (SC)

In respect to mutual exclusiveness of Grounds 5 and 6 making them inarguable together, it is submitted that there is no authority cited to back up the submissions of the learned Senior Counsel for the Respondent. Furthermore, that the law frowns at proliferation of issues for determination, relying on:-
(i) UGO VS. UMMUNA (2018) 2 NWLR (Pt. 1602) 102 at 120 SC;
(ii) EGHAREVBA VS. STATE (2016) ALL FWLR (Pt. 829) 1071 at 1082 C?D (SC); and
(iii) OMEGA BANK (NIG) PLC VS. O.B.C. LTD (2005) ALL FWLR (Pt. 249) 1964 at 1992 (SC)
?
Learned Counsel then urged us to discountenance the arguments together with the authorities cited in support by the Respondent?s learned Senior Counsel and dismiss same. Or in the alternative, we are urged to hold that the submissions of the learned Senior

Counsel in respect of the issue of jurisdiction are untenable since no leave is required in order to raise issues on jurisdiction of the Court to entertain a matter; that the Respondent placed emphasis on forms of action while neglecting issues of jurisdiction. He relied on OHAKIM VS. AGBASO (2011) ALL FWLR (Pt. 553) 1806 at 1839 H?1840 B (SC) and IKECHUKWU VS. NWOYE (2015) ALL FWLR (Pt. 769) 505 at 523 F?524 B (SC).

On the submissions of the learned Silk that the issue of detinue raised by the Appellant is not applicable as it is meant to encourage technical justice, the learned Appellant?s Counsel submitted that it is not a mere resort to form of action, relying on EDE VS. CBN (2015) ALL FWLR (Pt. 769) 1113 at 1225 B?E; WAEC VS. AKINKUNMI (2008) ALL FWLR (Pt. 427) 28 at 46 H?47 A (SC) and OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (Pt. 368) 1004 at 1014 (SC).

In respect to the submissions of the learned Silk that the factory is not a chattel and that there is no dispute over it, it is submitted that the detained items could either be a chattel or property and that the Respondent?s property being inside the factory,

renders them chattels.

In respect to documents mentioned in sub-paragraphs (b) and (c) being public documents which required certifications, it is submitted that the Respondent failed to respond to the submissions of the Appellant on ?credible, convincing, sufficient and admissible evidence? in support of its claim for detinue, and so such submissions should be accepted by this Court as the true position of the law, relying onNWANKWO VS. YAR?ADUA (2010) ALL FWLR (Pt. 534) 3 at 220 (SC).

Learned Appellant?s Counsel then urged us to dismiss all the submissions and authorities cited by Respondent?s Counsel under issue 2.

RESOLUTION OF ISSUE 2 (GROUND 5 & 6)
In this issue, the Appellant?s learned Counsel has submitted that the learned trial Judge was wrong in awarding the claims of the Respondent on the ground that the claims were based on an action in detinue which legal requirements were not fulfilled at the lower Court. The learned Senior Counsel for the Respondent on the other hand, has submitted to the contrary that the claims of the Respondent were awarded based not on detinue but on legally

admissible evidence. More fundamentally is the submission that Issue 2 cannot be validly distilled from ground 5 of the Grounds of Appeal as the ground is completely divorced from the issue allegedly based on non-fulfillment of conditions precedent to the plaintiff?s reliance on law of detinue.

Since this issue is distilled from Grounds 5 & 6 of the Grounds of Appeal, I have to carefully consider the complaints under these grounds.

Ground 5 is a complaint of admitting unpleaded evidence in the trial by the Court below, while Ground 6 is a complaint based on non-fulfillment of the legal requirements of the law of detinue.

The question is, can issue 2 be said to be completely distilled from the two grounds in view of the fact that the issue of detinue has just cropped up for the first time before us? Learned Senior Counsel has submitted that issue 2 distilled from grounds 5 and 6 cannot stand in the face of the law in view of the fact the issue of detinue was not raised at the lower Court and so cannot be raised for the first time on appeal without the leave of Court. I think the answer to the poser above is in the negative.

I shall now consider ground 6 dealing with the issue of detinue.

Now detinue has been defined in the BLACK?S LAW DICTIONARY TENTH EDITION at page 545 as follows:-
?A common-law action to recover personal property wrongfully taken or withheld by another.?
R.F.V. Heuston, Salmond on the Law of Torts at page 111 (17th Edition, 1977) has this to say on a claim in detinue:-
?A claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, and who, upon proper demand, fails or refuses to deliver them up without lawful excuse. Detinue at the present day has two main uses. In the first place, the plaintiff may desire the specific restitution of his chattels and not damages for their conversion. He will then sue in detinue, not in trover. In the second place, the plaintiff will have to sue in detinue if the defendant sets up no claim of ownership and has not been guilty of trespass; for the original acquisition in detinuesur bailment was lawful.?
Let me shade more light on this issue of claims in detinue by examining a few

decided cases:
(1) In ANANABA VS. FRI-EL ABA PALM (NIG) LTD & ORS (2016) LPELR?40463 (CA) page 28 this Court per Ige JCA stated as follows:-
?Detinue or claim in detinue is an action or suit in which the Claimant seeks to recover his personal property lawfully or wrongly taken or withheld by another person.?
(2) In FBN PLC VS. OLUFEMI SONGONUGA (2005) LPELR?7495 (CA) Clara Bata Ogunbiyi (JCA) as she then was, now JSC retired, at pages 41?42 stated as follows:-
?The concept of detinue had been defined in Black?s Law Dictionary, 5th Edition at page 405 as:- ?A form of action which lies for the recovery? of personal chattels from one who acquired possession of them lawfully, but retains without right, together with damages for the detention. Possessory action for recovery of personal chattels unjustly obtained? The action of detinue is defined in the old books as a remedy founded upon the delivery of goods by the owner to another to keep, who afterwards refused to deliver them to the bailor, ? It is necessary that the defendant should have come lawfully into the possession

of the chattel either by delivery to him or by finding it. Detinue as expounded in Black?s Law Dictionary therefore is a possessory action for recovery of property unjustly detained. It is an action which lies for the recovery of property from one who acquired possession of it but retains the same wrongfully, illegally or without right, together with damages flowing from or for the detention
(3) In LABODE VS. OTUBU & ANR. (2001) LPELR-1731 (SC) p. 18 para A, the Supreme Court held:-
?Detinue is defined to be a wrongful detention of plaintiff?s chattel by a defendant which is evidenced by the refusal of the defendant or his agent to deliver the chattel upon demand. The original taking may be lawful? the detention becomes wrongful if the defendant has no reasonable justification for retaining the goods.?
(4) In KOSILE VS. FOLARIN (1989) 3 NWLR (Pt. 107) 1 at 10 para C Nnaemeka Agu JSC, one of the erudite Nigerian Jurists who adorned the Supreme Court, has this to say:-
It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the

plaintiff?s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return.?
(5) In ENTERPRISE BANK LTD VS. DEACONESS FLORENCE BOSE AROSO & ORS. (2014) 3 NWLR (Pt. 1394) 256 at 298 F?H Rhodes?Vivour JSC, one of the brilliant Jurists currently at the apex Court made it clearer when he said:-
?I must explain the correct position of the law on detinue. The essence of detinue is that the defendant holds on to property belonging to the plaintiff and fails to deliver the property to the plaintiff when a demand is made. The goods must be in the custody of the defendant at the time the demand for them is made before an action in detinue can succeed. The cause of action in detinue is the refusal of the defendant to return the goods to the plaintiff after the plaintiff must have made a demand for them. A claim for detinue would fail if at the time the plaintiff made a demand the goods were not in the defendant?s actual possession. In such a case the plaintiff might have a cause of action in conversion but definitely not in detinue. The plaintiff can still sue in detinue that the

defendant wrongfully or improperly parted with possession of the goods before the plaintiff made a demand for them.?

The question that arises in the instant case is whether the facts and circumstances of this case render it a claim in detinue in accord with the legal principles enunciated in the authorities cited above?

With due deference to the learned Appellant?s Counsel, the answer to this question is a capital NO! Here is a case where the Appellant granted permission to the Respondent to produce or manufacture certain pharmaceutical products in 1992. Due processes were followed by both parties up to 2002 when the Appellant decided to seal up the premises of the Respondent on the grounds that fake drugs were being manufactured by the Respondent. Granted that the Appellant?s action was lawful, but the period of almost 5 years within which the premises remained sealed up, renders its action unjustifiable. This is the finding of the trial Court based on facts established and proved by credible evidence at the lower Court.
?
This case is therefore far from being a claim in deitnue. The Respondent has no legal obligation to prove

its case based on the legal requirements of a claim in detinue. The learned Appellant?s counsel cannot import into the case of the Respondent a claim in detinue which was not the claim of the Respondent at the lower court. This I so hold.

Accordingly the cases of UAC (NIG) PLC VS. AKINYELE (2012) 15 NWLR (Pt. 1322) 1 at 20 paras E?H and GUINESS (NIG) PLC VS. BOSE STORES LTD (2007) ALL FWLR (Pt. 393) 163 at 176 paras F?A cited and commended to us have no application in the instant case.

This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE 3
?Whether the learned trial Judge was right in making order(s) that were capable of indirectly amending or annulling an existing law (Ground 1 of Grounds of Appeal)?
Learned Appellant?s Counsel cited and relied on
(iv) OPIA VS. IBRU (1992) 3 NWLR (Pt. 231) 658 at 693 para D and
(v) KLIFCO (NIG) LTD VS. N.S.I.T.F.M.B. (2005) ALL FWLR (Pt. 288) 1209 at 1216 paras F?G
to the effect that Courts, including Tribunals are to give effect to statutes and not to breach them or whittle down their effects; that in other words

Courts are duty bound to uphold and preserve the law and as well as refrain from making any order(s) capable of making jest of, undermining and or defeating the law. He submitted that the Appellant merely performed its responsibilities under Section 5 of the law establishing it in respect of regulation, testing and investigation of production premises and raw materials used in production sites of regulated products, and therefore the order made by the lower Court was capable of annulling the said Section 5 of NAFDAC ACT. Learned counsel referred to paragraph 10 of the amended statement of claim dealing with payment of registration fees and submitted that there was no evidence in support of the averments therein contained, as such they are deemed abandoned, relying on NIGER MILLS CO. PLC VS. AGUBA (2008) ALL FWLR (Pt. 427) 86 at 112 para B and OLOKUNLADE VS. SAMUEL (2010) ALL FWLR (Pt. 669) 1150 at 1171?1172. He then urged us to resolve issue 3 in favour of the Appellant and against the Respondent.
?
The Respondent?s learned Senior Counsel on the other hand submitted that the said issue 3 and the ground of appeal upon which it is founded are very

speculative in nature. He maintained that there is nothing in the decision of the trial Court copied at pages 575?576 of the Record, capable of militating against the existence or operation of the NAFDAC Act. Learned Counsel argued that although the 1999 Constitution in Section 4(8) has empowered all the superior Courts (the Federal High Court inclusive) to annul any law which fails the consistency test, the lower Court in this case had not been approached to make such orders, and that none was made in the judgment appealed against.
?
It is again emphasized that the Ground 7 and the issue 3 distilled therefrom is a complaint against what could happen and not what has happened. It was submitted that whether the Respondent was registered to manufacture drugs or not was never in issue at the hearing in view of paragraph 7 of the statement of defence copied on page 465 of the Record, which conceded, at least, a conditional certificate for the manufacture of drugs. He submitted further that an order of the Court that inspection be carried out on the factory becoming functional or operational again, cannot reasonably be construed as militating against the operation of the Act.

Learned Senior Counsel then urged us to hold as follows:-
(i) That the issue No. 3 and ground 7 out of which it was distilled are speculative and thus invalid before this Hon. Court.
(ii) That the Hon. trial Court never made any such order as alleged by the ground of appeal and the issue.
(iii) That the ground of appeal and the issue distilled therefrom should be struck out as being speculative.
(iv) In the alternative to (iii) above, we should dismiss the ground 7 of the grounds of appeal.

Reply Brief
On issue No. 3, it is submitted that the Respondent?s arguments are so puerile that there was no need to reply to them and we are urged to discountenance same.
RESOLUTION OF ISSUE 3 (GROUND 7)
This issue deals with the orders of the learned trial Judge on pages 575?576 thus:-
?The Defendant shall upon request by the Plaintiff (after commencement of the factory operations) for inspection of its premises and production line as well as registration of its products, specifically: ? conduct said inspection and effect said registration without requiring payment of fresh

inspection and registration fees (the Plaintiff having already paid the required fees before the unjustifiable closure of its factory by the Defendant).?

This order was based on the findings of the learned trial Judge based on some documents and receipts which formed part of Exhibit A which were ?copies of documents and receipts showing that the Plaintiff (Respondent herein) applied for registration of various products.? There was evidence before the lower Court to the effect that the Respondent had paid for inspection and registration of certain drugs approved by the Appellant, (Page 556 of the Record) before the Appellant sealed up and closed down its premises and factory.

It is clear from the record that the order made was in respect of payment made by the Respondent for registration and inspection of the products before the unjustifiable closure of the factory by the Appellant. This order made by the learned trial Judge has nothing to do with the provision of Section 5 of the NAFDAC ACT.
The cases of OPIA VS. IBRU (1992) 3 NWLR (Pt. 231) 658 at 693 para D and KLIFCO (NIG) LTD VS. N.S.I.T.F.M.B (2005) ALL FWLR (Pt. 288) 1209

at 1216 paras F?G dealing with interpretation of statutes are not applicable in this case. I so hold.

The documents relied upon by the trial Court in making the orders complained of were part of Exhibit A which was pleaded in paragraph 10 of the Amended Statement of Claim of the Respondent and front loaded. There was the evidence of PW1 in support of the facts pleaded in paragraph 10. Therefore the reliance placed on NIGER MILLS CO. PLC VS. AGUBE (2008) ALL FWLR (Pt. 427) 86 at 112 para B and OLOKUNLADE VS. SAMUEL (2010) ALL FWLR (Pt. 669) 1150 at 1171?1172 paras H?B, though good law in respect of pleadings unsupported by evidence being deemed abandoned, are not applicable in this case in which the Respondent pleaded in paragraph 10 of its Amended Statement of Claim and adduced both documentary and oral evidence in support, as found by the learned trial Judge. I therefore agree with learned Respondent?s Senior Counsel that this issue is speculative and academic in nature, and so cannot enjoy the indulgence of this Court. I so hold.
?
Consequently, I resolve this issue against the Appellant and in favour of the Respondent.<br< p=””

</br<

ISSUE 4
?Whether the judgment of the lower Court was correct, in view of the weight of evidence led at the trial.? (Ground 9 of Grounds of Appeal)?

On this issue, learned Appellant?s Counsel reiterated his submissions on issues 1?3 in respect of wrong award of damages and orders made in favour of the Respondent, and then submitted that the other awards made by the learned trial Judge were not based on any credible admissible evidence.

He referred to the claims of the Respondent at paragraph 14(b) of the amended statement of claim at pages 6?7 of the Record, and submitted that there was no evidence of payment of registration fees in respect of the mentioned drugs or that the Respondent had been manufacturing the drugs before the closure of its factory.

He also submitted that the learned trial Judge granted a different version of the claim of the Respondent at pages 575?576 of the Record.
?
It was further submitted that both Respondent and Appellant joined issues on the claims of the Respondent contained in paragraph 14 of the amended statement of claim, and that the evidence of the Appellant

outweighed that of the Respondent when placed on the imaginary scale of justice, and yet the learned trial Judge refused to find for the Appellant. He referred to the averments of the Appellant in paragraphs 5, 8, 9 and 10 of the Statement of Defence on pages 464?465 of the Record, paragraph 9 of the deposition of DW2 on page 496 of the Record and paragraphs 3, 4, 5, 6 and 7 of the Written Deposition of DW1 on pages 499?500 of the Record, and then submitted that on the preponderance of evidence, the Appellant led evidence disproving the claims of the Respondent, and by the authority ofOSUJI VS. EKEOCHA (2009) ALL FWLR (Pt. 490) 614 at 643 E?F the Court below would have found for the Appellant. In conclusion, it was submitted that the learned trial Judge did not adjudicate this matter in accordance with settled principles of law, contrary to the position of the Apex Court in NIGERIAN ARMY VS. IYELA (2009) ALL FWLR (Pt. 452) 1012 at 1034 para G, and therefore this judgment is a nullity and should be set aside, as being perverse, on the authorities of ALIMI VS. KOSEBINU (2016) 17 NWLR (Pt. 1542) 337 at 357 paras B?D and STATE VS. AJAYI

(2016) ALL FWLR (Pt. 854) 1838 at 1883 para D.
Learned Appellant?s Counsel then concluded:-
(1) That the judgment of the lower Court was based wholly on facts not pleaded and on inadmissible evidence; and
(2) That the respondent did not discharge the onus of proof on it because it led inadmissible evidence and also failed to lead evidence on vital issues.

This Court was then invited to allow the appeal, and dismiss the claim of the Respondent in its entirety with substantial costs.

Learned Respondent?s Senior Counsel noted (albeit in error) that this issue is distilled from ground 8 (it is ground 9) and added that the determination of civil cases is on the balance of probability based on the preponderance of evidence; that it is common knowledge that the balance of probability is usually determined with the aid of the principle of the imaginary scale of justice propounded by Fatai-Williams JSC (as he then was), vividly captured by Oputa JSC in the case ofBALOGUN VS. LABIRAN (1988) 3 NWLR (Pt. 80) 66 at 64A, and reproduced by learned Senior Counsel. He referred to the Amended Statement of Claim and that of Defence on pages

5?7 and 464-465 of the Record respectively and then submitted that this suit was substantially undefended in the trial Court as the Appellant failed to controvert effectively, or even at all, the material pleadings in the Respondent?s statement of claim, and also failed to ask for further and better particulars where the Appellant felt that the particulars pleaded in the statement of claim were inadequate. It is contended that the Appellant did not identify any fact that can be put in its scale of justice while the Respondent has done that as follows:-
(i) Fact of registration of the Respondent as drug manufacturing company was pleaded at paragraph 4 of the amended statement of claim and conceded to at paragraph 7 of the statement of defence (page 465 of Record). That by Section 75 of Evidence Act, 2011 (as amended) and BALOGUN VS. LABIRAN (supra) the fact of registration of the Respondent as a drug manufacturing company needs no proof.
(ii) Fact of sealing of the Respondent?s factory in September 2002 by the Appellant, was pleaded in paragraph 5 of the amended statement of claim, testified to by PW1 and conceded to at paragraph 8

of the statement of defence (page 465 of the Record) by inadequate traverse and further conceded to in evidence by DW1 (page 538 of Record), and DW2 (page 543 of Record). It was contended that the Appellant never pleaded that the Respondent was manufacturing fake drugs. Learned Senior Counsel then submitted that the judgment of Justice Tsoho, J, acquitting the Respondent (Exhibit ?A?) scaled that point in favour of the Respondent, thus proving the wrongful sealing of the Respondent?s Factory.
(iii) The fact of suffering damages by the Respondent as a result of the wrongful sealing of the Respondent?s Factory was pleaded in paragraph 10 of the amended statement of claim, inadequately traversed in paragraph 8 of the statement of defence, and testified to in PW1?s witness deposition adopted as copied on page 526 of the Record. He referred to the evidence of PW1 and PW2 and submitted that they supported the facts of damages pleaded by the Respondent.
(iv) Evidence of monetary cost of damages was provided even though the Respondent pleaded N5 Billion as its claim, evidence of PW2 under cross examination by Appellant?s

Counsel and Exhibit ?C? established the amount awarded (page 530 of Record).

It is submitted that all the facts as proved were in the Respondent?s pan of the imaginary scale of justice against nothing in the pan of the Appellant. Learned Senior Counsel then urged us to resolve issue 4 in the affirmative and dismiss ground 8 (sic, 9) of the grounds of appeal.

The learned Senior Counsel then concluded his brief by submitting that this appeal richly qualifies to be dismissed, and urged us to so do for the following reasons:-
(a) Ground 6 of the grounds of appeal is incompetent, leave having not been sought and obtained as a point not taken in the Court below, before the ground was filed.
(b) Issue No. 2 is incompetent, having been distilled from grounds 5 and 6 of the grounds of appeal which are mutually exclusive to each other thereby making the issue ambiguous.
(c) The Appellant did not seek any further and better particulars from the Respondent in respect of the particulars about the absence of which the Appellant is complaining.
(d) The Appellant did not properly traverse paragraphs 4, 10 and 11 of the statement of

claim to controvert the facts therein pleaded.
(e) The Appellant conceded paragraph 4 of the statement of claim in paragraph 7 of the statement of defence.
(f) A trial Court has the competence to limit award of damages to the amount proved by the party claiming as in this case.
(g) Ground 7 of the grounds of appeal is incompetent the complaint therein being speculative, and having not arisen from the judgment appealed against.
(h) Issue No. 3 is incompetent having been distilled from an incompetent ground of appeal (ground 3).
(i) In the imaginary scale of justice the case of the Respondent on the facts preponderates.

Reply Brief
On issue No. 4, it is submitted that the respondent did not address the issues raised by the Appellant as to the inadmissibility of the evidence led by the Respondent at the lower Court.

It is also submitted that in preponderance of evidence, only credible evidence is evaluated, relying on AJIBULU VS. AJAYI (2014) 2 NWLR (Pt. 1392) 483 at 502 D?E (SC).

It is concluded that the Respondent?s arguments in its brief of Argument are without substance and should be discountenanced by us,

and that on the other hand, the Appellant?s Appeal is meritorious and should be allowed. We were so urged.

RESOLUTION OF ISSUE 4 (GROUND 9)
It has been the contention of the learned Appellant?s Counsel that the learned trial Judge was wrong in relying on inadmissible evidence to make award of N898,881,145.20 in favour of the Respondent and that the remaining awards were not based on any evidence tendered before the lower Court, referring to paragraph 14(b) of the Amended Statement of Claim. However the trial Court found, based on the documents forming part of Exhibits A and B, that the Respondent had made some payments in respect to inspection of some products of the Respondents.

It is to be observed, as found by the learned trial Judge, that there was evidence vide letters dated 1st March, 1996, 7th June, 1996 and 7th April, 2000, that proved that there were approvals given to the Respondent to manufacture and distribute certain pharmaceutical products subject to registration of same. It was found that the Respondent paid for the registration and inspection of the pharmaceutical products. However, the sealing up and closing down of

the premises and factory of the Respondent for about five years caused the damage of the products both finished and raw.

Having made these findings of fact based on the documentary and oral evidence before it, it would be wrong for this Court to disturb such findings without just cause. These findings were based on the fact:-
(1) That the Respondent was a registered drug manufacturing company at all times material to this suit (paragraphs 4 and 7 of the amended statement of claim and the statement of defence respectively).
It is trite that facts admitted need no further proof. See Section 75 of the Evidence Act (as amended) and the case of BALOGUN VS. LABIRAN (1988) 3 NWLR (Pt. 80) 066 at 84A.
(2) That the Respondent?s factory was sealed up by the Appellant from September 2002 to July 2007 (paragraphs 5 and 8 of the Amended Statement of Claim and statement of defence (pages 472 and 465 of the Record respectively), coupled with the evidence of DW2 at page 543 of the Record.
(3) That the sealing of the factory and premises of the Respondent by the Appellant had caused substantial damages to the Respondent as pleaded in paragraph 10 of

the Amended Statement of Claim and
(4) That there was evidence of monetary cost of the damages caused to the Respondent by the acts of the Appellant.

The learned trial Judge was on firm ground in his findings and awards to the Respondent and I see no cogent and plausible reason to disturb these findings and awards.

On the whole, I find and hold that the act of the Appellant in sealing up the company of the Respondent for about five years after it had granted it the permission to manufacture pharmaceutical products, was callous, unreasonable and unjustifiable.

This appeal therefore has no merit and same is hereby dismissed with cost of N50,000.00 in favour of the Respondent and against the Appellant.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the lead judgment of my Brother IBRAHIM ALI ANDENYANGTSO JCA. I agree with his reasoning and conclusions. I also dismiss the appeal. I abide by the consequential order made as to costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment by my learned brother l. A. Andenyangtso, JCA, just delivered, and I think my

Lord has been quite exhaustive and thorough in the handling of the pertinent issues, donated for the determination of the Appeal. I agree with his reasoning and conclusion, that the appeal is devoid of merit.

I also think this case should serve as useful caution or warning to government agencies, to act within the scope of the law that created them, and with human face, in dealing with fellow humans/citizens when they (Institutions) exercise their discretion in service.
Sealing up the Respondent for about 5 years, in the circumstances that Appellant did, grounding Respondent’s business and services, and hounding down the company, as shown in the unsuccessful prosecution of the Respondent in in my view, smacks of high-handedness, the Courts, persecution, impunity and misuse of statutory’ powers. With a little show of sensitivity and due care, Appellant would still have discharged its oversight function over the Respondent without so much injury, and saved the situation and the huge damages it has now caused itself and the Nation by its misadventure.
Appellant is expected to learn from this decision and pronouncement of Court in its conduct and

services, and be properly guided in the discharge of its duties. See the case of The State Security Service & Ors Vs The Incorporated Trustees of the Peace Corps of Nigeria: CA/OW/171/2016 delivered on 12/4/19, where we said:
“The 1st Appellant and its leadership… are established and regulated by law and must act within the confines of the law in the exercise of their discretion; they cannot be arbitrary, excessive or overzealous in their the service, to undermine constitutional and fundamental rights of members of the public they are enjoined to protect, defend and serve.”

I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

Appearances:

I.T. IORHAA, Esq.
For Appellant(s)

Chief M. I. Ahamba, SAN with him, C. C. Okoroafor and Beatrice Peter (Miss)For Respondent(s)

Appearances

I.T. IORHAA, Esq.For Appellant

AND

Chief M. I. Ahamba, SAN with him, C. C. Okoroafor and Beatrice Peter (Miss)For Respondent

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