AKINDOLIE v. JOLAOSO (2020)

AKINDOLIE v. JOLAOSO

(2020)LCN/14907(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, December 29, 2020

CA/L/542/2015

RATIO

APPEAL: POSITION OF THE LAW ON FORMULATION OF ISSUES

The law on formulation of issues is settled beyond any dispute. It is that the issues must be based on the grounds which also must be based on the judgment. Any ground of appeal not arising from the judgment is of no moment just as issues formulated that is not based on the grounds of appeal. See Orianzi vs. A.G. Rivers State (2017) 6 NWLR (Pt. 1561) 2745; K.R.K. Holdings (Nig) Ltd vs. FBN & Anor (2016) 12 S.C. (Pt. II) 85; Nwankwo & Ors vs. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518. In formulating issues for determination a party is not allowed in law to formulate more issues than the ground of appeal. That is to say,one ground of appeal cannot give birth to more than one issue. This in law is the rule against proliferation of issues. See MFA & Anor vs. Inongha (2014) 1-2 S.C. (Pt. 1) 43; Nduul vs. Wayo (2018) LPELR-45151 (SC). PER EBIOWEI TOBI, J.C.A.

APPEAL: RULE OF PROLIFERATION OF ISSUES

The issues as formulated by them offend the rule of proliferation or at least the principle that the issues must be based on the grounds or the rule that grounds of appeal must relate to the judgment. PER EBIOWEI TOBI, J.C.A.

JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION

Jurisdiction being a sacrosanct and fundamental issue in our adjudicatory system must be dealt with first whenever it is raised. It is a trite principle of law to the effect that where jurisdiction is raised, the Court must resolve on the issue first, one way or the other before delving into all other issues in the case or appeal. See Anyanwu vs. Ogunewe & Ors (2014) LPELR-22184 (SC); Brittania-U (Nig) Ltd vs. Seplat Petroleum Development Co. Ltd & Ors (2016) 4 NWLR (Pt. 1503) 541; Ugo-Ngadi vs. FRN (2018) LPELR-43903 (SC). PER EBIOWEI TOBI, J.C.A.

FAIR HEARING: RIGHT TO FAIR HEARING

I will like to take a brief excursion into the relevance of the right to fair hearing as enshrined under our adjudicatory system. It is no doubt that the right to fair hearing is an inalienable right enshrined under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 36 of the Constitution provides thus:
“36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Right to fair hearing entails affording a party to a dispute the right to be heard or to present his case, before a decision is taken in that regard. The Court cannot make a decision just by hearing one of the parties to a case. It must hear both parties in arriving at the justice of the case. The doctrine is all about the observance of the rules of natural justice in trial proceedings to ensure attainment of justice and fairness to all the parties in a case. The end point being that it must be ensured that justice is done to the respective parties in a case, in line with established legal rules formulated for same. See Nwokocha vs. A.G of Imo State (2016) LPELR-40077 (SC). It is a doctrine that is premised on the twin pillars of natural justice, which are audi alteram partem; which connotes ‘hearing the other side’ and of course, the other arm which is nemo judex in causasua – ‘no one can be a judge in his own case’. Both concepts are well embedded in Section 36(1) of the Constitution. It is only when all these attributes are present in the proceedings that the parties can be said to have been given a fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law.

The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causasua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo-Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

OLAKUNLE AKINDOLIE APPELANT(S)

And

MOYOSORE ADISA JOLAOSO RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice Adenike J. Coker (Mrs) of the Ikeja Division of the High Court of Lagos State in Suit No. ID/1750/2009 – Mr. Moyosore Adisa Jolaoso vs. Mr. Olakunle Akindolie delivered on 21/11/2013. The brief set of facts that culminated in this appeal are simple and straight forward. The Respondent (then Claimant) instituted this suit at the lower Court against the Appellant (then Defendant) vide a Writ of summons and Statement of Claim seeking the following reliefs:
1. A DECLARATION that the Claimant is entitled to the sum of N3,000,000 (Three Million Naira) less N700,000 (Seven Hundred Thousand Naira) being sum refunded to the Claimant by the Defendant, with interest thereof at the rate of 21% per annum from the date of issuance of First Bank Cheque No. 5015610 in favour of the Defendant until total liquidation of the entire sum being amount paid by the Claimant to the Defendant for the purchase of the property known as 9. USC Street off Ray-Power Road, Alagbado, Lagos State.
2a. AN ORDER directing the Defendant to immediately pay back the sum of

N3,000,000 (Three Million Naira) with interest at the rate of 21% per annum from the date of issuance of First Bank Cheque No. 5015610 in favour of the Defendant to the Claimant until total liquidation of the entire sum being amount paid by the Claimant to the Defendant for the purchase of the property known as 9, USC Street, off Ray-Power Road, Alagbado, Lagos State less the sum of N700,000 (Seven Hundred Thousand Naira) only refunded by the Defendant to the plaintiff, OR IN THE ALTERNATIVE
2b. AN ORDER directing the Defendant to execute a letter of transfer of ownership of his property at 33, Ogo-Oluwa Street, Oke-Ira, Lagos in favour of the Claimant by virtue of the undertaking and pledge for payment executed by the Defendant on 3/2/07.
3. Special damages in the sum of N5,821,500 (Five Million Eight Hundred and Twenty One Thousand Five Hundred Naira) only being amount spent on renovation of property known as 9 USC Street, off Ray-Power Road, Alagbado, Lagos State.
4. General damages and cost of this action assessed at N5,000,000 (Five Million Naira) only.
5. AN ORDER restraining the Defendant from transferring and or alienating or

dealing with his property known as 33, Ogo-Oluwa Street, Oke-Ira, Lagos being subject of a pledge for the Claimant’s sum of N3,000,000 (Three Million Naira) subject matter of suit.”

The lower Court after going through the plenary of a full trial resolved in favour of the Respondent in the judgment found on pages 302-317 of the record of appeal (pages 1-16 of the judgment) specifically at page 317 of the record where it held thus:
“Judgment is therefore entered in favour of the Claimant against the Defendant as follows:
1. Relief (1) in the sum of N3 Million less N740,000 plus interest as claimed on the said lesser sum.
2. Relief 3 for special damages in the sum of N5,821,500 (Five Million Eight Hundred and Twenty One Thousand Five Hundred Naira).
3. Relief 4 for General Damages assessed in the sum of N3.5 Million only.
The Alternative Reliefs 2b and 5 are struck out accordingly
This shall be the Judgment of this Court.”

The Appellant dissatisfied with the judgment of the lower Court exercising his right to appeal filed this appeal vide a notice of appeal dated and filed on 9/1/2014 containing two

grounds of appeal. The notice of appeal is found on pages 318 – 320 of the record of appeal. The grounds are:
GROUND ONE
The learned trial judge erred in law when she arbitrarily and in a high handed manner entered judgment for the claimant in spite of the Defendant’s clear evidence and strong argument in opposition to the claimant’s case.
GROUND TWO
The learned trial judge erred when she entered judgment for the Claimant even though the Claimant did not show or place before the Court all the vital evidence required in Agency matters thereby violating the Appellant’s rights to fair hearing.

The Appellant’s brief of argument dated 8/6/2015 but filed on 8/6/2015 was settled by Temisan Ochem (Mrs). In the Appellant’s brief, counsel raised the following issues for determination:
1. Whether the learned trial judge was right in giving judgment in favour of the Respondent in view of the Appellant’s argument that his duty as an agent ended upon introduction of the Claimant to the owner of the property and most especially when the claimant had benefitted from the Respondent’s acts as an agent

having taken full possession.
2. Whether the constitutional right of fair hearing of the Appellant as enshrined in the 1999 Constitution (Section 36) was observed by the learned trial judge since the appellant was not allowed to place and prove the vital evidence required in the circumstances.
3. Whether the learned trial judge did not err in law when she arbitrarily and in a high minded manner entered judgment in favour of the Respondent in respect of reliefs 1,3 and 4 of the Respondent’s claim without proof of the said reliefs.

On issue one, it is the assertion of learned counsel that flowing from the decision of the court in R.O. Iyere vs. Bendel Feed & Flour Mills Ltd. (2009) 3 W.R.N 139 @ 145; Alhaji Isa Bayero vs. Mainasara & Sons Ltd (2006) 36 WRN 136 @ 156, it is safe to conclude that the Appellant acted as agent to the owner of the said property, having the requisite mandate to act for the owner accordingly. Going further, counsel argued that it is an undisputed fact that the Appellant was authorized by the owner of the property, the subject matter of the suit, to sell the property which makes it a valid sale from all

ambit of the law. It is the submission of counsel that the principal is liable in civil cases for the acts of his agent executed within the scope of his authority. He citedAlhaji Isa Bayero vs. Mainasara & Sons Ltd. (supra); Osigwe vs. PSPLS Management Consortium Ltd. (2009) 16 WRN 1 @ 8; Dehinsilu vs. Mondec Pharmacy Ltd. (2009) 35 WRN 134 @ 143; UBA Plc. vs. Ogundokun (2009) 31 WRN 21 @ 27. Flowing from the above, it is the further submission of learned counsel to the Appellant that the Appellant acted on behalf of his brother-in-law, one Mr. Taiwo Akinwale, the owner of the property in dispute who due to the dispute in payment of the purchase price of the property ejected the Respondent from the premises. It is the final contention of learned counsel on this issue that the Respondent on the payment of the sum of N3,000,000 was put in quiet possession of the said property after which he immediately started exercising maximum acts of ownership and as such cannot hold the Appellant responsible for his misfortune when the owner ejected him from the property for failure to pay the balance of the purchase price. On this note, counsel urged the Court to decide

this issue in favour of the Appellant.

On issue two, learned counsel relied on Black’ Law Dictionary, 5th Edition page 537 and the case of Darma vs. Oceanic Bank Ltd (2004) 42 WRN 133 @ 136 – 137 on the definition of fair hearing. It is the contention of counsel that from the definition, the germane question to be asked is, “was the Appellant’s constitutional right to fair hearing observed before judgment was delivered in favour of the Respondent?” A question which he answered in the negative. He cited Integrated Builders vs. Domzaq Ventures (Nig) Ltd (2004) 51 WRN 39 @ 64 to buttress his point. It is his argument that the learned trial Judge refused to hear the Appellant when he stated that he was not liable for the act of his principal when the Respondent was ejected from the premises but rather descended into the ocean of empathy for the Respondent who always appeared before the Court in tears. He further cited Nya vs. Edem (2004) 9 WRN 140 @149; Abuja Trans-National Market vs. Abdu (2008) 1 WRN 51 @ 70 on the issue of fair hearing and asserted that the lower Court shut out the Appellant’s argument that he was merely

the agent of his principal and should not be held liable for his principal’s actions. Lastly, on this issue, counsel relied on Integrated Builders vs. Domzaq Ventures (Nig) Ltd. (supra) with respect to the consequence of breach of fair hearing.

On issue three, counsel calling in aid the cases of C.A.P Plc vs. Vital Investments Ltd (2006) 46 WRN 74 @ 81; Maimmunat O. Haruna vs. Commissioner of Police (1998) 7 NWLR (Pt. 557) 215 @ 228 – 229 stated the trite principle of law to the effect that he who asserts must prove. On the issue of special damages, counsel relied onArabambi vs. A.B. Industries Limited (2006) 6 WRN 1 @ 13 in arguing that the Respondent did not specifically plead the particulars of the special damages in his statement of claim at the lower Court but merely stated the sum that he is entitled to as such relief 3 for special damages should not have been awarded in favour of the Respondent. He relied on G.K.F. Investment Nigeria Limited vs. N.I.T.E.L. Plc (2005) 31 WRN 107 @ 115; C.A.P. Plc vs. Vital Investments Ltd. (supra) 85; Akinkugbe vs. Ewulum Holdings Nigeria Ltd. (2008) 42 WRN 1 @ 7.

On the issue of general damages,

counsel relied on the authorities ofMobil Producing (Nig) Unltd. vs. Udo (2008) 36 WRN 53 @ 71; Al-Rissalah P.P. Co. Ltd. vs. El-Housseini (2008) 14 WRN 78 @ 83; NDIC vs. K.B. & C. Services Ltd. (2007) 41 WRN 34 @ 41 in arguing that the damages complained of by the Respondent did not flow from the Appellant’s act but rather from the act of the owner of the properly, Mr. Taiwo Akinwale. On the strength of Odogwu vs. Ilombu (2007) 52 WRN 190 @ 194; Akinkugbe vs. Ewulum Holding Nigeria Ltd. (supra), learned counsel for the Appellant urged this Court to revisit the judgment of the lower Court with respect to the damages awarded in favour of the Respondent and nullify same as it was awarded on a wrong principle. On the whole, counsel urged this Court to allow this appeal and order trial of this matter on its merit by another Judge of the Court.

The Respondent’s brief filed on 22/6/2016 was settled by S. A. Oshodi Esq. In his brief, learned counsel for the Respondent adopted the issues for determination raised earlier by the Appellant. I will not reproduce them here as I have done so above.

On issue one, it is the contention of learned

counsel for the Respondent that a closer look at the pleadings and evidence before this Court will reveal that the Appellant neither acted as the agent of the owner of the property nor endorsed as an accredited/authorized agent of the owner of the said property. He referred this Court to paragraphs 3-8 of the Amended Statement of Claim and posited that those facts stated therein were neither denied in the Appellant’s Statement of Defence nor in his evidence in chief at the lower Court. He cited Olubode vs. Oyesina (1977) 5 S. C. 79 relied on in Ologun vs. Fatayo (2013) 1 NWLR (Pt. 1335) 303 @ 320. Counsel further cited Dagash vs. Bulama (2004) All FWLR (Pt. 212)1666 to the effect that evidence elicited during cross examination if related to the facts in issue has same probative value and it is as valid and authentic as evidence elicited during examination in chief. Counsel submitted that the act of the Appellant trying to approbate and reprobate when in one breath he said he is an agent of the owner of the property and in another breath failed to remit the money collected from the sale of the said property to the owner who he claimed he was acting for

should not be encouraged as same is not allowed in our judicial system. He cited Okon vs. Ubi (2006) All FWLR (Pt. 328) 723. Counsel referred this Court to Exhibit D1 which is a matter before the lower Court instituted by the owner of the property, Mr. Taiwo Oluwadare Akinwale against the Respondent and the Appellant wherein the lower Court held that the Appellant is not the authorized agent of the owner of the property. On the strength of Exhibit D1, Counsel therefore submitted that once an issue has been decided by a Court of competent jurisdiction, it is binding on the parties until it is set aside. He relied onBabatunde vs. Olatunji (2000) 2 S. C. 9; Nwora & 3 Ors vs. Nwabueze & 6 Ors (2011) 12 SC (Pt. 111) 1; Muazu vs. Bani Musa Holding Ltd (2011) All FWLR (Pt.594) 172 @ 184; Nkwo vs. Uchendu (1996) 3 NWLR (Pt. 434). Learned counsel urged this Court not to allow the Appellant benefit from his own wrong. He cited the case ofDesign Construction Ltd vs. SCOA Nig. Ltd (2007)2 SC 195 @ 271 to support this position. It is the contention of learned counsel that against the belief of the Appellant, the Respondent was ejected out of the property because the

Appellant failed to remit the N3,000,000 received from the Respondent to the owner of the property and further because the Appellant was never given the mandate to sell the said property by the owner. It is the final submission of counsel on this issue that the cases cited by the Appellant in its argument on agency are not apposite with the facts of the present case on appeal. He therefore relied on Okafor vs. Nnaife (1987) 9-10 SCNJ 70 in urging this Court to resolve this issue in favour of the Respondent.

On issue two, it is the contention of learned counsel that against the argument of the Appellant that he was not given fair hearing, the Appellant was given enough time to present his case before the trial Court in line with the principle of fair hearing. With respect to the Appellant’s argument that he was shut out when arguing that he was merely the agent of the principal, it is the submission of Respondent’s counsel that this cannot be true as the rule of pleadings expected the Appellant to have presented all his arguments against the statement of claim in his statement of defence which was adopted before the lower Court on the

proceedings of 10/6/2013. He placed reliance on Chidoka vs. F.C.F.C Ltd (2013) 5 NWLR (Pt.1346) 144 @ 162; Apatira vs. Lagos Island LGC (2006) All FWLR (Pt.328) 757; Inakoju vs. Adeleke (2007) All FWLR (Pt. 353) 111. Counsel argued that even if the lower Court failed to pronounce on some of the issues raised before it, the lower Court has dealt with the main issues in controversy between the parties. He relied on Ewo vs. Ani (2004) All FWLR (Pt. 200) 1448 @ 1498; Adebayo vs. A.G Ogun State (2008) 2-3 SC (Pt. 11) 50; A.I.I.B Ltd vs. I.D.S. Ltd & 2 Ors (2012) 5 S.C. (Pt. 11) 112. The final argument of counsel is that the cases relied on by the Appellant on lack of fair hearing did not support his case as the Appellant was given the opportunity to present his case at the trial Court but chose not to utilize same.

On issue three, it is the contention of learned counsel for the Respondent that the Respondent in this case has proved that he is entitled to both special and general damages. It is the further contention of counsel that the evidence of the Respondent in proving his entitlement to special damages was never contradicted by the Appellant at the

trial Court and as such the evidence adduced is valid and sufficient enough to satisfy the requirement of the strict proof of special damages. On this position, counsel relied on a host of authorities such as Oando (Nig.) Plc vs. Adijere West Africa Ltd (2013) 15 NWLR (Pt. 1377) 374 @ 383; Odulaja vs. Haddad (1973) All NLR 836; Ajao vs. Ashiru (1973) 11 SC 23; Oyo State vs. Fairlakes Hotels (No. 2) (1989) 5 NWLR (Pt.121) 255; Ijebu Ode Local Government vs. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136; Nepa vs. Alli (1992) 8 NWLR (Pt. 259) 279; Nzeribe vs. Dave Eng. Co. Ltd (1994) 8 NWLR (Pt. 361) 124. Counsel further relied on Cappa & D’Alberto Ltd vs. Akintilo (2003) 4 SC (Pt.11) 1; Mosheshe General Merchants Ltd vs. Nigeria Steel Products Ltd (1987) 4 SC (Reprint) 105 in submitting that in the course of presenting his client’s case he commits the client either by way of specific undertaking or a clear admission.

Furthermore, it is the submission of counsel that since the claim for special damages by the Respondent was not specifically denied by the Appellant, minimal evidence is needed to sustain the claim for special damages as a general

denial is not sufficient traverse or denial. He cited Oando (Nig.) Plc vs. Adijere West Africa Ltd (Supra). Counsel contended that assuming the Respondent was only able to proffer an oral evidence without production of receipts or other documents, same is not fatal to the Respondent’s claim for special damages. He relied on Umar vs. Oweye (2003) FWLR 38@ 54; Dakat vs. Dashe (1997) 12 NWLR (Pt.531) 46; Boshali vs. Allied Commercial Export Ltd (1961) 2 SCNLR 322.

On the issue of general damages, it is the contention of learned counsel that the Respondent having suffered both mental and material injuries which are the direct results of the Appellant’s unlawful act is entitled to general damages. He asserted that general damages arises by interference of law and need not be proved by evidence. For this he relied onBritish Airway vs. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 @ 286. For both special and general damages counsel relied on Eliochin Nig. Ltd vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 @ 65; Odiba vs. Azege (1998)9 NWLR (Pt. 566) 370 @ 382. On a whole, counsel citedNwaolisah vs. Nwabufoh (2011) 8 SCM 139 in submitting that he who comes to equity

must come with clean hands and urged this Court to dismiss the appeal.

I have examined the issues as formulated by both counsel in the briefs of the parties. I have a challenge with the issues formulated particularly issue 1. The law on formulation of issues is settled beyond any dispute. It is that the issues must be based on the grounds which also must be based on the judgment. Any ground of appeal not arising from the judgment is of no moment just as issues formulated that is not based on the grounds of appeal. See Orianzi vs. A.G. Rivers State (2017) 6 NWLR (Pt. 1561) 2745; K.R.K. Holdings (Nig) Ltd vs. FBN & Anor (2016) 12 S.C. (Pt. II) 85; Nwankwo & Ors vs. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518. In formulating issues for determination a party is not allowed in law to formulate more issues than the ground of appeal. That is to say,one ground of appeal cannot give birth to more than one issue. This in law is the rule against proliferation of issues. See MFA & Anor vs. Inongha (2014) 1-2 S.C. (Pt. 1) 43; Nduul vs. Wayo (2018) LPELR-45151 (SC).

As earlier mentioned, the parties have the same issues formulated from the ground of

appeal. The issues as formulated by them offend the rule of proliferation or at least the principle that the issues must be based on the grounds or the rule that grounds of appeal must relate to the judgment. In this respect, though the law allows me to adopt the issues of the parties. I will however not fully adopt the three issues formulated by the parties. The notice of appeal as contained on pages 318-320 of the records has two grounds of appeal. There is no way three issues can arise from two grounds of appeal without offending one of the rules stated above. The suspected issue is issue 1. I do not see issue 1 as an issue formulated from any of the two grounds of appeal or arising from the judgment. In the circumstance, I will ignore issue 1. I therefore strike out issue 1. The appeal can be sustained by issues 2 and 3 which I will adopt as my issues 1 and 2. For completeness, I reproduce the issues for determination in this appeal thus:
1. Whether the constitutional right of fair hearing of the Appellant as enshrined in the 1999 Constitution (Section 36) was observed by the learned trial judge since the appellant was not allowed to place and prove

the vital evidence required in the circumstances.
2. Whether the learned trial judge did not err in law when she arbitrarily and in a high minded manner entered judgment in favour of the Respondent in respect of reliefs 1, 3 and 4 of the Respondent’s claim without proof of the said reliefs.

Having reproduced the issues above, I will now proceed to address the issues one after the other. I will deal with issue one first not only because it is the first numerical number but also because it is an issue that borders on fair hearing and by extension has an overreaching effect on jurisdiction. Jurisdiction being a sacrosanct and fundamental issue in our adjudicatory system must be dealt with first whenever it is raised. It is a trite principle of law to the effect that where jurisdiction is raised, the Court must resolve on the issue first, one way or the other before delving into all other issues in the case or appeal. See Anyanwu vs. Ogunewe & Ors (2014) LPELR-22184 (SC); Brittania-U (Nig) Ltd vs. Seplat Petroleum Development Co. Ltd & Ors (2016) 4 NWLR (Pt. 1503) 541; Ugo-Ngadi vs. FRN (2018) LPELR-43903 (SC).

The Appellant has hinged

his grouse with respect to this issue on the foundation of denial of fair hearing. Before I go into the merits of the arguments of both parties, I will like to take a brief excursion into the relevance of the right to fair hearing as enshrined under our adjudicatory system. It is no doubt that the right to fair hearing is an inalienable right enshrined under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 36 of the Constitution provides thus:
“36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Right to fair hearing entails affording a party to a dispute the right to be heard or to present his case, before a decision is taken in that regard. The Court cannot make a decision just by hearing one of the parties to a case. It must hear both parties in arriving at the justice of the case. The doctrine is all about the observance

of the rules of natural justice in trial proceedings to ensure attainment of justice and fairness to all the parties in a case. The end point being that it must be ensured that justice is done to the respective parties in a case, in line with established legal rules formulated for same. See Nwokocha vs. A.G of Imo State (2016) LPELR-40077 (SC). It is a doctrine that is premised on the twin pillars of natural justice, which are audi alteram partem; which connotes ‘hearing the other side’ and of course, the other arm which is nemo judex in causasua – ‘no one can be a judge in his own case’. Both concepts are well embedded in Section 36(1) of the Constitution. It is only when all these attributes are present in the proceedings that the parties can be said to have been given a fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law.

trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suomotu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.”
Similarly, inArdo vs. INEC & Ors (2017) LPELR-41919 (SC), it was held thus:
“This Court in the case of DEDUWA vs OKORODUDU 4 LC 894 at 898 defined what is a fair Hearing:- “A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed M.R. said in ABBOT VS SULLIVAN. In MOHAMMED VS KANO N.A.,

Ademola C.J.N. (delivering the Judgment of the Court) said at page 426:- “We think a fair hearing must involve a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this.” If, of course, there is no hearing of one party’s side of the case especially if it is through no fault of his own, this may also amount to no “Fair hearing” of his side of the case and he will not have had a “fair hearing in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution.” This Court had pronounced that “the right to fair hearing does not stop with the parties being present in Court.” It is a right to be heard at every material stage of the proceedings.”
Where a Court or Tribunal fails to uphold the right of fair hearing of any of the parties before it, it would amount to the breach of the constitutionally guaranteed right, and it will

lead to such proceedings and the decision reached thereon being declared a nullity. A breach of right to fair hearing of a party before a Court goes to the root of the Court’s jurisdiction as it nullifies the entire proceedings in which the breach occurred leaving nothing for the appellate Court to decide. It does not matter the correctness of the decision and indeed the brilliance of the judgment. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC). If I agree with the submission of the Appellant that he was denied fair hearing before the lower Court, then the whole action of the Respondent at the lower Court will be declared null and void and the appeal will be allowed.

Let me address an issue raised by the Appellant’s counsel on fair hearing.
It is the contention of counsel to the Appellant that the lower Court failed to hear the Appellant when he stated that he was not liable for the acts of his principal when the Respondent was ejected from the premises. To my mind, what the Appellant is alleging in simple parlance is that, the lower Court failed in its duty to consider the agency relationship that existed between the

Appellant and the owner of the property and that if the Court had done that, it would have arrived at a different decision entirely. Counsel to the Appellant posited that this inadvertence of the learned trial Judge has breached the Appellant’s right to fair hearing. Can the assertion of the Appellant be true? In proffering answers to this issue, I must resort to the record of proceedings, specifically to the judgment of the lower Court to find out whether or not the lower Court actually considered the Appellant’s issue as it relates to agency.
I have gone through the record of appeal with particular reference to pages 312-314 (pages 11-13 of the judgment) and I cannot seem to appreciate the argument of the learned counsel for the Appellant. From all indication, it would seem that the learned trial Judge considered the evidence of the Appellant on this issue as raised by the Appellant under issue two as found on page 311 of the record of appeal which dealt on the issue of general and special damages. I am fortified in this my view especially when the learned trial Judge after reiterating the submissions of counsel held on pages 312 and 314

respectively thus:
“This Court has considered the above submissions very carefully and authorities cited…
….
Therefore, the issue of agency raised in the Final Written Address of the Defendant and submissions in that regard are discountenanced.”
From the holding of the lower Court as reproduced above, it is clear that the learned trial Judge, gave the Appellant fair hearing and as such, I cannot see any reason whatsoever in upholding the argument of the Appellant’s counsel that the Appellant was denied fair hearing, more so when the lower Court is the Court saddled with the responsibility of analyzing the evidence and testimonies of witness. See Okonkwo & Ors vs. Okonkwo & Ors (2010) LPELR-9357 (SC); Edilcon (Nig) Ltd vs. UBA Plc (2017) LPELR-42342 (SC). That aside, it is noteworthy and obvious from the record of appeal that in the conduct of the proceedings, all the parties were afforded equal opportunities in the presentation of their case.

As an obiter, let me say that it is not all conduct of the lower Court which the Appellant does not agree with that counsel must hang his allegation of

lack of fair hearing on. An allegation of lack of fair hearing is a serious matter and same must be raised responsibly. It must not be used as parties as a saving anchor for a sinking case. See Adebanjo & Anor vs. Adesanya & Ors. (2018) LPELR-46661 (CA); Ugo-Ngadi vs. FRN (2018) LPELR-43903 (SC).

On this note and in the light of the foregoing, this issue is resolved in favour of the Respondent.

On issue two, it is the contention of the Appellant counsel that the learned trial Judge erred in law when he granted the reliefs 1, 3 and 4 of the Respondent’s claim. Counsel argued that the Respondent did not prove his claim at the lower Court. Can this be true? Before I consider this issue, I will like to caution that counsel in formulating issues for determination and indeed making submissions must be civil in their language. The right of appeal does not include the right for counsel to use uncultured language to describe the Judge or the judgment of a Court. The legal profession should be one big family where we are to have mutual respect for each other. The Bar/Bench relationship should be cordial. Both sides of the profession either as a

counsel or a Judge owe the legal profession the duty to show respect to each other. The duty of Appellant’s counsel is not to criticize the Judge but the judgment. When grounds of appeal are couched in ways that touches the integrity of a Judge, it must be condemned. To say that the lower Court ‘arbitrarily and in high handed manner entered judgment for the Claimant’ is to say the least taking the liberty of filing an appeal too far. I roundly condemn that phrase. There are better ways of putting counsel dissatisfaction with a judgment without touching the personality of the Judge. The Judge is the Judge and the Appellant or his counsel is not the Judge. If any party has a problem with the judgment, that party should face the judgment and not the Judge except one has proof of bias. That a party is unhappy with the judgment is not liberty to insult the Judge either directly or impliedly. A word they say is enough for the wise. He who has an ear, let him hear. In this respect, I am inclined to refer to the case of this Court. It is the case ofAssociation of Senior Civil Servants of Nigeria vs. The Governor of Bayelsa State (2019) LPELR-47261 (CA).

This Court per Lamido, JCA held:
“I cannot end this Judgment without showing my alarm at the callousness in which learned counsel to the appellant cast serious aspersions on the integrity of the learned trial Judge both in his grounds of appeal and his appellant’s brief of argument by imputing that the learned trial Judge acted mala fide or in bad faith and even gave so called “Particulars of error and bad faith” in most of his incompetent grounds of appeal. Johnson O. Esezoobo, Esq., has in so many places referred the judicial act made by the learned trial Judge as acts made in bad faith. No matter how counsel viewed the decision of the trial Court, that gives him no license to cast aspersions on the integrity of the learned trial Judge; it is most uncharitable. Where a counsel wants to ventilate his grievances, the only professional way to do so is by lodging an appeal like is done in this case. Using foul language on a person who has no right of reply is cowardly and unprofessional. It should be remembered that the learned trial Judge subscribed to an oath of office before he assumed duty to be fair to all manner of people without fear or

favour. To launch an attack on the learned trial Judge’s integrity by stating that he acted in bad faith in the course of performing his judicial function is to say the least uncouth. In the words of Gumel, JCA; in Akinbode V. Oyebamiji & Anor (2014) LPELR 24410 @ 15-16, a counsel “has right and indeed the duty to present his case to the best of his ability, however he has to do so within the bounds of professional ethics. The duty he owes his client is subject to a higher duty he owes to a higher cause – the course of justice….. It is a breach of professional ethics for counsel to conduct himself as he did in this matter by casting aspersion on the integrity and impartiality of a Judge or using foul and indecorous language against any judicial officer.” We belong to a learned profession which is honourable, distinct and where decorum and etiquette ought to guide our daily activities. It is bad if a party to a matter pour such venomous content on our Judges but certainly worse if the venom came from the spit of a legal practitioner. No legal practitioner worth his salt shall descend so low to engage in such an act. This type of conduct is condemned in

the highest terms. Counsel ought to retrace his steps and conduct his matters in a civilized and professional manner. I say no more.”

Now to the issue on ground. Was the lower Court right in granting the reliefs of the Respondent in the lower Court? In other words, was the lower Court confronted with enough evidence to grant the reliefs it granted? I had reproduced the reliefs earlier in this judgment so I will not repeat same. I will start with the first relief. This is the demand for the sum of N3,000,000 paid by the Respondent to the Appellant as agent of the owner of the property which sum was not paid to the owner. The Respondent parted with N3,000,000 for the purchase of property at No. 9 USC Street, off Raypower Road, Alagbado, Lagos State. The Appellant did not deny receiving the said sum. He however did not pay over that money to Mr. Taiwo the owner of the property. The Respondent was ejected from the house by the said Mr. Taiwo. The Respondent did not get the house and naturally he wants his money back less N700,000 that the Appellant had earlier paid to him. The Appellant did not deny this as shown in the record of appeal and stated in the

judgment. Having not denied that, the lower Court was right in granting relief 1 in the Respondent’s claim at the lower Court. I cannot decide otherwise not even on the issue of interest as there is no appeal against the pre-judgment interest. The lower Court awarded 21% pre judgment interest. I cannot interfere with that as there is no appeal against the pre judgment interest. I can also not interfere with the finding of the lower Court since the finding is not perverse in my opinion and it is in line with the evidence before the Court. See Okhuarobo & Ors vs. Aigbe (2002) LPELR-2449 (SC).

I will now consider relief 3 which deals with special damages. The lower Court awarded the sum of N5,821,500 as special damages to the Respondent. The implication of the decision is that the lower Court believed that special damages was specifically pleaded and evidence given in proof of that fact in before it.

Decisions of Courts are replete on the trite law that special damages must be specifically pleaded and proved. In Eneh vs. Ozor & Anor (2016) 16 NWLR (Pt. 1538)219 (SC), it was stated thus:
“The law is well settled, that special

damages must be specifically pleaded with distinct particularity and it must also be strictly proved. The Court should not act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of alleged loss or injury sustained by the plaintiff. See B.J. NGILARI v. MOTHERCAT LTD (1999) 12 SC (Pt. 11) 1, OSUJI v. ISIOCHA (1989) 6 SC (Pt. II) 158. In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 this Court stated thus: “Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed”. The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel O. Okunzua v. Mrs. E. B. Amosu & Anor

(1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he is indeed entitled to such award under the head. See OSHINJINRIN & ORS v. ELIAS AND ORS (1970) All NLR 153 at 156.
One more case on this trite principle of law will not do anyone harm. I will refer to the case of Anyanwu & Ors vs. Uzowuaka & Ors (2009) 6-7 S.C(Pt. II) 44 where the apex Court held:
“With respect to the special damages claimed the settled principle of law is that special damages must be specifically pleaded and strictly proved. See SHELL B.P. v COLE (1978) 3 SC 183; DUMEZ v OGBOLI (1972) 2 SC 45; SOMMER v FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Part 219) 548 at 560; OKUNZUA v AMOSU (1992) 6 NWLR (Part 248) 416 at 432; OSHINJIRIN v ELIAS (1970) 1 ALL NLR 153 at 156; A.G. OYO STATE v FAIRLAKES HOTELS (No. 2) (1989) 5 NWLR (Part 121) 255 at 278-279.”
The Respondent claimed special damages in the sum of N5,821,500.00 (Five Million, Eight Hundred and Twenty One Thousand, Five Hundred Naira) in his relief 3 of its

claim and as such same must conform to the stipulations of the law on it being specifically pleaded and strictly proved. What this Court will now consider is to determine if the relief of the Respondent on his relief 3 of his claim was specifically pleaded and if same was strictly proved. In resolving this issue, the lower Court held that the Respondent has proved his claim for special damages. Let me refer to one on two cases on this subject for completeness. In Ajigbotosho vs. RCC (2018) LPELR-44774 (SC), it was stated thus:
“It is settled and quite trite that special damages claimed must be specifically pleaded, and they must be strictly proved. The party pleading special damages is enjoined to particularise in his pleading the item(s) of special damages claimed. He must base his claim on precise calculation and give the Defendant access to the facts on which such calculation is based. This requirement satisfies one of the twin pillars of fair hearing, that is audi alteram partem. The essence is that the defence shall not be prejudiced or put to embarrassment. The requirement enables the defence to prepare to meet frontally the case put up against him

on the special damages claimed. Claim for special damages based on mere estimates or estimation of the Plaintiff is not precise. It is as good as an exercise in mere conjecture, a guess work, which clearly is the antithesis of precise calculation. The party who founds an item of his claim on special damage intends thereby to remove from the Court its discretion in the matter to some extent. Equally, in a claim for special damages the Court is not expected to issue its order on mere conjecture. Every order of Court is expected to be precise and certain. A claim founded on mere conjecture is clearly an invitation to the Court to descend to the realm of conjecture and thereby producing an order that is uncertain in terms; and that is not a hallmark of judicial order.” (Underlined for emphasis)
In the above case, the apex Court went on to hold that where items of special damages are not specified and strictly proved as in the instant case, recovery of the same will not be granted.
Similarly, in Daniel Holdings Ltd vs. UBA Plc (2005) 13 NWLR (Pt. 943) 533, it was reiterated thus:
”Where there is specific pleading of special damages it must be

proved by evidence clearly showing how the damages arise. Parties and Court should not presume Court will be their calculator or instant computer. Every item of special damage in statement of claim must have clear evidence to support it.” (Underlined for emphasis)
I have gone through the record paying particular attention to the Amended Statement of claim found on pages 127-132 of the record. The Respondent in his in paragraph 25 and 26 of his amended statement of claim seem to believe he has pleaded special damages. Is this true?. I reproduce the paragraphs for ease of reference:
“25. The Claimant avers that when the defendant put him in possession, the property was dilapidated but he (the Claimant) renovated the said property to habitable condition and even erected shops in the frontage of the property and drainage amongst other thing. The bills of quantity for the said works will be relied upon at the trial of this suit.
26. The Claimant avers that he spent N5,821,500 (Five Million Eight Hundred and Twenty One Thousand, Five Hundred Naira) only in renovation of the property while he was in possession. Proof of the expenditure is

hereby pleaded and shall be relied upon at the trail of this suit.”
The pleading stated that the Respondent renovated the building. The evidence of this is the bill of quantity and the proof of expenditure. Having pleaded same, those documents become part of the pleadings for which evidence will be adduced. The question is, do those documents meet the requirement of specific pleading of special damages? If those documents have particularized items and the cost of those items then the Appellant should have passed the test of specifically pleading the special damages. Just a general pleading in the fact of renovation of the property will not be sufficient. These documents are found on pages 42-49 of the records. In the first place, those documents were not tendered through CW1 and CW2. They were not tendered at all. In the circumstance, the documents are of no moment as the law is settled, facts pleaded that no evidence is adduced to buttress same is deemed abandoned. See Ilodibia vs. Nigerian Cement Company Ltd (1997) LPELR-1494 (SC). Even if I am wrong, that is to say if they are tendered, they do not meet the requirement of the law on specifically

pleading, itemizing and particularizing the specific renovation work made with the cost implication on each. The pleading was amended to bring in the evidence of CW3 who also pleaded the documents referred to. The documents again do not meet the requirement of the specific pleading required for special damages. This again is general pleading of renovation work done for which money was paid in installment. The letter from Pius Tany Engineering Nig Ltd that carried out the renovation work was admitted as Exhibit C10. The bill of quantity is Exhibit C11. The receipts are Exhibits G2 A-F.
The main question is, do the above stated facts which were before the lower Court satisfies the requirement of the law on special damages? In my opinion they do not as they were just document generally stating the fact of renovation but they do not include specific item by item and the cost attached to each to satisfy the requirement of special damages. What is more, there was no evidence by all the witnesses of the Claimant where the evidence was given to meet the requirement of the law on special damages. The pleading and evidence is too general. It is on this note that I

do appreciate the argument of the learned counsel for the Appellant that the Respondent failed to prove his claim for special damages. I cannot therefore see my way clear to agree with the lower Court that the Respondent has proved special damages against the Appellant. On the relief for special damage I hold in favour of the Appellant.

Having dealt with the issue of special damages, let me now turn my gaze to the contention of the Appellant’s counsel with respect to the Respondent’s claim for general damages.

The Court, in awarding general damages is to assess the damages based on injury that naturally flowed from the wrong suffered by the Respondent caused by the Appellant. The gravity of the damages awarded will be based on injury suffered which naturally flows from what the Respondent suffered. The apex Court in stating the principle upon which general damages will be awarded held inElf Petroleum vs. Umah & Ors (2018) 1 S .C (Pt. 1) 173; held thus:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court.

It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.
Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance Ltd V. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and WASA V. Kalla (1978) 3 SC 21.”
In Agbanelo vs. UBN Ltd (2000) 7 NWLR (Pt. 666) 534, the Supreme Court made a similar decision in these words:
“Before a Court can commence a meaningful assessment of damages, it must be sure of the nature of the claim, that is to say, whether the claim is in contract or in tort, and, if in tort, the nature of the wrong alleged.
I adopt the definition of the terms “damages” contained in the McGregor on Damages (16th Edition 1997) as follows (in paragraph 1):
“Damages are pecuniary

compensation obtained by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the time, unconditionally and generally…”
In an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and IS incurred in direct consequence of the violation. (See Swiss-Nigeria Wood Industries Ltd. v. Bogo) (1970) 6 NSC 235). The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. (See James v. Mid-Motors Nigeria Co. Ltd. (1978) 11 and 12 SC 31, (1978) 11 NSCC 536). The object of tort damages is to put the plaintiff in the position he would have been in if the tort had not been committed, whereas, the object of contract damages is to put the plaintiff in the position he would have been in if the contract had been satisfactorily performed.
Even if it had been clear that the claim is in the tort of negligence, there may be need for a further inquiry, whether the tortious conduct found has occasioned only economic loss and, if so, if it is within the variety of tortuous

conduct for which the Court will award compensation for economic loss.”
In the same case Galadami, JSC held thus:
“The basic object of an award of damages is to compensate the plaintiff for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA v. R.O. ALLI & ANOR (1992) 10 SCNJ 34, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR v. EKWENEM (2009) 6-7 (Pt. II) SC 5.”
While the Respondent was not required in law to specifically prove what the action of the Appellant has caused him, there must be some element of proof to show that the Respondent suffered some form of injury as a result of the action of the Appellant. Once this is established then the gravity of what he suffered will determine the damages awarded.

Having held earlier that it was the action of the Appellant that led to the Respondent losing the property and not his own negligence,

the lower Court, in my opinion, properly assessed the injury suffered before awarding the cost for damages. In paragraph 27, 28, 29,30, 31 and 32 of the statement of claim, the Respondent stated what he has suffered as a result of the action of the Appellant in selling off a property to him which he was not authorized to sell. These paragraphs were specific as to the mental, political and financial setback the Respondent actually suffered for which he needs to be compensated for or for which restitution ought to be made. He also went further to tender medical papers and reports of various check-ups he had undergone due to the impact the action of the Appellant had on his mental health. In the circumstance, I am not at liberty to interfere with the award of general damages by the lower Court as where the lower Court has properly assessed the damages, all that the appellate Court can do is to uphold same. See Williams vs. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124) 1; Ogunsakin vs. Edu Local Govt. Area, Kwara State & Ors (2011) LPELR-8816 (CA).

Having looked at the evidence before the lower Court I come to the conclusion that the lower Court applied

the principles properly in assessing the damages and therefore came to the right conclusion that the Respondent is entitled to N3,500,000 (Three Million, Five Hundred Thousand Naira) as general damages.. This issue of general damages is therefore resolved in favour of the Respondent.

On the whole, this appeal succeeds in part. The decision of the lower Court, that is the Ikeja Division of the High Court of Lagos State delivered by Adenike J. Coker (Mrs.) on 21/11/2013 in the matter of Mr. Moyosore Adisa Jolaoso vs. Mr. Olakunle Akindolie – No. ID/1750/2009 as it relates to relief 1 and 4 of the Respondent’s claim in the lower Court is affirmed. However the decision of the lower Court on relief 3 for special damages is set aside.
Parties are to bear their respective cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ebiowei Tobi, J.C.A., and add that since the leg of claim for special damages was not particularized and strictly proved by the respondent, the Court below was wrong in awarding special damages to the respondent.

In the result, I too allow the appeal in part and set aside the

award of special damages, while the appeal with respect to reliefs 1, 2(a) and 4 of the respondent’s claim is unmeritorious and is hereby dismissed. Parties to bear their costs.

BALKISU BELLO ALIYU, J.C.A.: My learned brother has availed me with the draft of the judgment just delivered. I agree with the reasoning and conclusion reached therein and I adopt same as mine. I also allow the appeal in part in terms of the lead judgment.
I abide by the consequential orders made therein.

Appearances:

Absent For Appellant(s)

A. Ologundudu Esq. For Respondent(s)