AUGUSTINE OKOKON ETIM v. CLASEN VENTURES & ORS. (2011)

AUGUSTINE OKOKON ETIM v. CLASEN VENTURES & ORS.

(2011)LCN/5051(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of June, 2011

CA/C/65/2010

RATIO

THE DUTY OF THE COURT TO LIMIT ITSELF TO THE ISSUES RAISED BY THE PARTIES IN THEIR PLEADINGS.

ASSESSMENT OF AND ASCRIPTION OF VALUE TO EVIDENCE ADDUCED BY PARTIES

The law is both basic and latent that assessment of and ascription of value to evidence adduced by parties is the primary function of the learned trial judge. Hence, it is improper for an appellate court to intervene when the duty has been duly and properly carried out by the said learned trial judge. see Salihu Okino v. Yakubu Obanebira & Ors. (1999) 13 NWLR (Pt.636) 535; Eleran v. Aderonpe (2008) 11 NWLR (Pt.1097) 50. Thus, the law is settled, that in order to reverse the decision of a trial court which is based largely or mostly on its assessment of the quality and credibility of witnesses who testified before it, an appellate court must not only entertain doubts that the decision of the trial court is right, but must also be convinced that it is wrong, mistaken or perverse. See N. E. P. A. v. Role (2000) 7 NWLR (Pt. 663) 69. Thus, the power of an appellate court to intervene, set aside or reverse the decision of a trial court on issues of fact, is strict, striven and limited. This is more so, because an appellate court cannot commence a fresh or re – evaluation of the evidence adduced before the trial court and thereby arrive at a different conclusion from the one arrived at by the trial court. Hence, an appellate court is disentitled to inquire into disputes but to limit itself to only inquire into ways the disputes have been tried and resolved. See Attorney General Ekiti State v. Daramola (2003) 10 NWLR (Pt. 827) 104. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

Before Their Lordships

KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

Between

AUGUSTINE OKOKON ETIMAppellant(s)

AND

1. CLASEN VENTURES
2. NTUFAM EDWIN OJONG
3. NTUFAM ALPHONSUS ETAMBUI
4. PETER OKENA
5. CLEMENT ENERespondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): The appellant herein as plaintiff, instituted an action against six defendants before the High Court of Cross River State, Akamkpa Judicial Division, in Suit No. HK/1/2005, vide his writ of summons and statement of claim which he filed on 4th January, 2005. In the course of hearing the matter, the then first defendant died and on 15th December, 2006, his name was struck out from the suit. The trial court then ordered that the names of the remaining defendants be re – numbered serially from 1st – 5th, to reflect the unfortunate but changed situation.
At the lower court, the then plaintiff claimed in his amended statement of claim, filed or 14th March, 2007 with leave of the trial court sought and granted on 19th February, 2007 as follows:
“WHEREOF the Plaintiff claims from the Defendants N20,000,000.00 (Twenty Million Naira) General Damages and Special Damages as follows:
i. Four Hundred Thousand Naira (N400,000.00) for Legal retainership.
ii. Twenty Thousand Naira (N20,000.00) money paid for medication.
iii. Two Thousand Five Hundred Naira (N2,500.00) times the numbers of days Counsel Travels from Calabar to Akamkpa for this case since January, 2005.
iv. Thirty Five Thousand Naira (N35,000.00) monthly income and allowances due to the Plaintiff which has been deprived him from 3rd day of November, 2004 when he was unlawfully removed from his company.
v. Filing fees as evidence in the Court Processes.”
It is to be noted that, prior to the above stated position, the defendants had filed their statement of defence. This was done with leave of the trial court, sought and obtained on 9th March, 2005. (Pp.33 -36 & 134 of the record)
Parties duly joined issues in their respective pleadings and at the hearing, the plaintiff called three witnesses including himself and also tendered documentary evidence. The 5th defendant testified for the defence and also tendered documents in evidence. At the close of evidence and after filing of written addresses and adoption of the same by the learned counsel for the parties, the learned trial judge in his judgment delivered on 30th September, 2009, found inter alia at pages 239 – 240 of the record as follows:
“It has been contended by the plaintiff that his removal from CLASEN VENTURES, as a director of that company by the defendants, was wrongful. I have no hesitation in resolving this issue at all. For whether the plaintiff was a director or a staff of CLASEN VENTURES, is it not at all permissive, for him to have short changed, or withheld Revenue/ funds of the company unilaterally, without attracting appropriate sanctions, from the appointing body (CLASEN VENTURES). The plaintiff’s unjustified withholding of the haulage tax that he was appointed by CLASEN VENTURES, to collect on its behalf, for the state Government, was certainly reprehensible enough, to warrant his prosecution and conviction as it turned out to be.” (sic)
He further held on appellants claim as follows:
“The plaintiff has in this action, come before this court, to contest that his removal is wrongly. My finding is that his removal is right. He who comes to Equity must come with clean hands. He has been convicted for clearing fraudulently with has “Directorship” vis-a-vis his company interest. He has not appealed against his conviction. His conviction is valid and subsisting. He can not be availed the relief sought by him in this action. His hands were not, and is still not clean to attract the reward of payment of the (sum of N35,000.00 claimed by him in this action from the defendants, as income and allowances, for the period he never specified, and did not furnish this court, with a break down.”(sic)
On a final note, the learned trial judge concluded and ordered thus:
Accordingly, I hereby hold that the plaintiff has failed woefully, to satisfy this court, that he has the competence to bring this action. There is absolutely no merit in the plaintiff’s present action against the defendants in this suit.
ORDER
(1) The plaintiff’s suit is hereby dismissed.
(2) The Defendants are not liable to the plaintiff.
(3) This case is accordingly determined and finally disposed, with N10,000.00 cost against the plaintiff, in favour of the Defendants.”
Being dissatisfied, the plaintiff has appealed to this Court with a notice of appeal which contains five grounds of appeal. Hence – thus, in this judgment, the plaintiff will be referred to as the appellant, while the defendants will be called the respondents.
In the appellant’s brief of argument prepared by Dr. Tony Ukam, OON, JP and filed on 11th May, 2010 one issue was formulated therein for the determination of this appeal. It goes thus:
“Whether the Appellant, having proved his case (as a director) can be denied the justice of this matter by reason only, of the unpleaded and unproven case of conviction against him by a magistrate court.”
For the respondents and in their brief of argument prepared by J. A. Dada Esq. which said brief was deemed duly filed and properly served with leave of this Court granted on 19th January, 2011, it was contended therein, that the issue formulated above by the appellant, “is self – serving and not distillable from the ratio decidendi of the case.” That the only issue arising for determination in this appeal, according to their humble view is:
“Whether from the totality of the evidence before the learned trial judge the Appellant could be said to have made out his case to justify the learned trial judge finding in his favour.”
Let me state, that upon a careful perusal of the record of appeal, inclusive of the trial court’s judgment and the grounds of appeal filed thereon, the issue formulated by the appellant did not hit the nail on the head. It is not encompassing, considering the five grounds of appeal filed in this matter. Since the core essence of the five grounds of appeal amounted to a challenge or complaint against the lower court’s handling and treatment of the case, on the basis of the issues joined in their pleadings and evidence led thereon, I will in this regard, adopt the sole issue framed by the respondents in determining this appeal.
Before proceeding further, permit me my Lords, to briefly rehash the salient facts of the case as pleaded and predicated on the evidence led thereon. In the year 2003, the 4th and 5th respondents herein, were given receipt booklets by the IRS, Headquarters, Calabar to collect haulage tax in Nsan, Obung and Old Netim – three quarries in Akamkpa Local Government Area. In their bid to discharge the assigned task, they met with stiff resistance from the natives and truck drivers who gave them a run for their money. They had to beat a hasty retreat. Subsequently, the appellant got involved and waded fully into the matter.
According to the appellant, it was his intervention, tireless efforts and attending series of meetings with stakeholders, that did the magic. The haulage tax collection contract was then awarded in 2004 to the appellant, “in the name of the 1st respondent herein.
After operations which lasted for six months or thereabouts, there was a parting of the ways, as the appellant was sent packing and denied further participation in the execution of the haulage tax collection contract. Briefly put, the appellant claimed that he was the prime and sole initiator of the haulage tax collection contract and that he was schemed out of the business by the respondents. All these and more led to the institution of the instant action by the appellant against the respondents and the reliefs which he claimed as contained in paragraph 69 of his amended statement of claim. Both in their pleadings and evidence led at the hearing before the trial court, the respondents vehemently denied the version of events as claimed by the appellant. The 5th respondent maintained that the 1st respondent, a company which the appellant claimed to be non – existent, belongs exclusively to him and the appellant was merely an agent, co-ordinator or staff of the 1st respondent, involved or engaged in the execution of the haulage tax collection contract in question. Respondents insisted that the appellant was sent packing when he failed to account or remit money collected on behalf of the 1st respondent. Additionally, that as a result thereof, a report was made to the police who investigated the complaint of assault and misappropriation of fund levelled against the appellant who was prosecuted and convicted in respect thereof. At the end of it all, the learned trial judge found and held as previously quoted above in this judgment, Appellant’s action against the respondents was accordingly dismissed.
Again, as previously stated, the parties in accordance with rules of this Court, duly filed and exchanged briefs of argument. At the hearing of this appeal on 22nd March, 2011, the learned counsel for the appellant adopted and relied on his brief which was filed on 11th May, 2010 and his reply brief which was deemed filed on 2nd March, 2011. Similarly, the learned counsel for the respondents adopted and placed reliance on their joint brief of argument which was deemed duly and properly filed on 19th January, 2011.
Learned counsel for the appellant in his brief, rehashed and referred to what he described as three distinct stages in the chronicle of events in this case. It was then pointed out, that though the trial court found the assertion by the respondents that, “the appellant was just a mere staff of the first respondent who has no contract of service and can be hired and fired as the first respondent pleases; the appellant having contributed nothing to the actualization of the contract to the first respondent,” to be unproved, it “unfortunately held that the appellant is not entitled to the relief’s claimed as he did not specifically prove same and even if he did, he was rightly removed as he was convicted for stealing by another court and he has not appealed against his conviction.” Learned appellant’s counsel then submitted and cited the case of walter v. Skyll (Nig.) Ltd. (2000) FWLR (pt.13) 2244/2250; (2001) 3 NWLR (pt.701) 438, on the position of the law, that when allegation of crime is raised in civil proceedings, the burden of proof is on the person that alleges and the standard of proof is beyond reasonable doubt.
It was further contended by the learned counsel for the appellant that there was no specific proof of the fact relied upon in this regard. According to him, “evidence of previous conviction is given with leave of court,” and such leave was neither sought nor obtained. Additionally, that the appellant was not put on notice of the intention of the respondents to give such evidence against him, Learned appellant’s counsel sought to persuade us to hold, that the learned trial judge was in error to have relied on the inadmissible oral testimony of 5th respondent in court without more to arrive at his conclusion that the appellant was so convicted and he has not appealed against his conviction.
It was the further standpoint of learned appellant’s counsel, that granted but not conceded, “that the appellant was charged, convicted and sentenced to prison or that he has not appealed against the sentence,” that the facts were not pleaded by the respondents. At this point, a feeble or subtle attempt was made by the appellant to challenge the trial courts record of proceedings.
However, the position maintained was that the law is clear, that evidence on unpleaded facts goes to no issue. Furthermore, that where a court wrongly admits inadmissible evidence, it is duty bound to expunge and not rely on such inadmissible evidence in its judgment. Reference was made to the cases of Nwobi v. Anukan (2000) FWLR (Pt.18) 327 and Olayinka v. The State (2007) 4 FWLR (Pt.397) 6957/6963.
Learned counsel for the appellant also touched upon the refusal of the trial court to grant the claim for special damages made by the appellant. He contended that the appellant specifically pleaded and gave evidence thereon. We were urged to allow the appeal, set aside the decision of the trial court and grant all the reliefs claimed by the appellant in his amended statement of claim.
Replying to the sole issue formulated and argued in this appeal, the learned counsel for the respondents maintained that other than specifying his claims for salary, allowances and other heads of special damages, the appellant failed to prove them as “no scintilla of evidence, oral or documentary” was proferred in proof thereof.
It was his submission, that the appellant having failed and incurably too, to prove his case, the learned trial judge was right and had no “option but to dismiss the same.” We were referred to Okon Johnson & Ors. V. Mobil Producing (Nig.) Unltd. & Ors. (2010) All NWLR (Pt. 530) 1337; Neka B. B. Manufacturing Co. Ltd. v. A. C. B. Ltd. (2004) 17 NSCQR 240; (2004) 2 NWLR (pt.858) 521, (2004) All FWLR (pt.198) 1175, on the position of the law, regarding claim and proof of special damages.
Learned counsel for the respondent contended in his further submission that on the whole, the law is elementary and settled that he who asserts must prove. The cases of Agu v. Nnadi (2003) FWLR (Pt. 139) 1537; Elema v. Akenzua (2000) 6 SCNJ 226 and Songhai Ltd. v. U. B. A. (2004) FWLR (Pt. 189) 1244/1258 were cited thereon. It was then argued that the appellant failed to discharge the burden of proof in order to establish what made his removal unlawful and his entitlement to the reliefs claimed by him.
On the contention of the appellant’s counsel that the trial court entered judgment against the appellant on “unpleaded and unproven case of conviction” of the appellant, the learned counsel for the respondents argued that the main reason for the failure of appellants case as found by the learned trial judge was the inability on the part of the appellant to prove his case and thereby discharge the burden of proof placed on him. He made reference to the pleadings, particularly to the statement of defence and the admission made under cross examination by the appellant. Hence the submission without conceding, that in the event of the conviction of the appellant being the basis for the trial court’s judgment, that the evidence was admissible and the trial court rightly acted on it. Additionally, that “the fact of criminal investigation having been clearly stated in the pleading, is enough to sustain the evidence of its outcome which was the conviction of the appellant.” It was submitted in the alternative that assuming the evidence on conviction of appellant was improperly admitted; the law is established, “that it is not in all cases where wrongful admission of evidence will ipso facto lead to a reversal of the judgment on appeal.” That in the instant case, abundant evidence exist before the trial court and it cannot be rightly said that its judgment was exclusively predicated on the fact of conviction of the appellant or that a miscarriage of justice has been occasioned thereby with the dismissal of appellant’s case. We were urged in conclusion to dismiss the appeal.
The appellant filed a reply brief. Since respondents’ brief did not raise fresh issues or arguments, the appellant’s reply brief could not have addressed such non existent issues or points. Thus, in the instant case, appellant’s reply brief merely reiterated some of the arguments on points already canvassed in appellant’s main brief.
The law and or practice is settled, that the sole objective of a reply brief is to provide answers to fresh issues of law or arguments raised in the respondent’s brief. Indeed, a reply brief cannot be used to strengthen the appellant’s brief by merely repeating the arguments made in the appellant’s brief. It should be confined to answering new points and such fresh issues alone. Where there are no such fresh issues or arguments to be addressed, a reply brief is rather unnecessary and totally uncalled for. It will thus amount to a wasted effort and dissipated energy if one is filed under such a circumstance. See generally, Olafisoye v. F. R. N. (2004) 4 NWLR (Pt.864) 580/644; E. I. I. A. v. C. I. E. Ltd. (2006) 4 NWLR (Pt. 969) 114/128; Okpala v. Ibene (1989) 2 NWLR (pt.102) 208.
I have perused the record of appeal and also gave consideration to the arguments and submissions of the learned counsel for the parties. The core issue for determination in this appeal is whether the burden of proof has been discharged by the appellant and whether the standard of proof required to establish the defence of the respondents to the action before the trial court, is one beyond reasonable doubt or preponderance of evidence, given the circumstances and peculiar facts of this case. The issue as stated can be gleaned from the pleadings filed and evidence laid thereon by the parties herein.
When mention is made of onus of proof, it is to be noted that it is akin to burden to prove any issue arising from the pleadings.
Thus, onus of proof is on the party who will fail if no evidence whatsoever is adduced to prove issues joined in respect of a fact or facts in the dispute and as stated in the pleadings filed by the parties. See Are v. Adisa (1992) NMLR 304.

Thus, it is trite that when cases are pursued on the basis of issues joined in the pleadings filed by the parties, such cases are determined on the platform of the said pleadings and evidence led thereon. Hence, they stand or fall, sink or float purely on the basis of evidence led on the pleaded facts. It is settled, that a trial court is strictly bound to limit itself to the issues raised by the parties in their pleadings. Indeed, doing otherwise might as well result in denial of justice to one or the other of the two disputing parties, or setting up an entirely different case from the one which the parties placed before it and in respect of which the issues have been joined in their pleadings. See N. I. P. C. Ltd. v. Thompson Organisation (1969) 1 A1l NLR 138; George v. Dominion Flour Mill Ltd. (1963) 1 SCNLR 117; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; A. S. E. S. A. v. Ekwenem (2009) 13 NWLR (Pt.1158) 410. Now, let me revert back to the instant case. It is to be noted that the learned counsel for the respondents at paragraph 3.13 pages 7 – 8 of their brief made reference to paragraphs 17 and 18 of their statement of defence at page 98 of the record of appeal. This reference is misconceived. The statement of defence filed by the respondents on 7th February, 2005 and contained at pages 96 –  99 of the record was struck out by the trial court in its ruling which it delivered on 23rd February, 2005. (P.133 of the record). Thus, it is extinct and not extant. Having been struck out, it is incapable of being referred to or reliance placed thereon. Howbeit, the respondents’ statement of defence, filed on 8th March, 2005 with leave of the trial court sought and obtained on 9th March, 2005 avails the respondents and serves as a saving grace for them. (Pp. 33 – 36 and 134 of the record) Paragraphs 14, 15, 16, 17 and 18 thereof are germane and instructive to the issue in contention and they are reproduced  below as follows:
“14-. The Defendants aver that shortly after the take-off of the business, the plaintiff became greedy, unaccountable, violent and disobedient.
15. Specifically, the plaintiff was unable to make returns of tax he collected from the quarry at Nsan assigned to him. Although he was subsequently assigned to work with the 5th Defendant, he bullied the 5th Defendant, frustrated his participation in the exercise so that actual total income will be unknown to anybody or the company. The plaintiff did not stop at merely  molesting intimidating and instigating the unlawful arrest of, the 5th Defendant, he physically assaulted the 5th Defendant personally and through his thugs and made away the receipts in the 5th Defendant’s custody together with the money collected as tax on the day of the attack. This matter was promptly reported to the Police at Akamkpa. (sic)
16. The Defendants aver that quite apart from the above unruly and inexplicable violence of the plaintiff, his community wrote to the Board of Internal Revenue informing it of his removal form the village council owing to what was described as “his nefarious and dubious attitude”. The conduct of the plaintiff while working for the 2nd Defendant was a patent demonstration of his dubious character. The said letter shall be relied upon at the trial of this action and is accordingly pleaded.
17. The case of assault and stealing leveled against the plaintiff is still being investigated by the police at Akamkpa.  18. The Defendants aver that the plaintiff has failed, refused an neglected to account for the money in his possession at the time of termination of his appointment and has also failed to  surrender the company’s money stolen from the 5th Defendant. The money is estimated at about N39,000.00.”
The corollary to the above can be traced to paragraphs 64 and 65 of the appellant’s amended statement of claim at page 89 of the record wherein it was pleaded thus:
“64. The Plaintiff avers that all the  Defendants acted as stooge in a gang up with Alex Asikpo, as a shadow leader signed a document as Chairman, Secretary and Directors respectively purporting to remove the plaintiff as staff of Clasen Ventures after alleging defamatory matters against the person of the plaintiff. The said document is  pleaded. 65. The Plaintiff avers that in line with his avowed position in paragraph 62 above Hon. Alex Asikpo and the Defendants petitioned the Commissioner of police alleging that the plaintiff was constituting nuisance to tax collection in Akamkpa in response whereof the plaintiff was arrested on the 5th of November, 2004 and was detained till the 6th of November, 2004 further on the  strength of the petition of Hon. Alex Asikpo And the Defendants, the Plaintiffs house was searched and nothing was found.” Before the trial court, the following pieces of evidence were adduced. The appellant tendered Exhibit E Letter captioned, “Removal as Staff of Clasen Ventures”. Paragraph 64 of appellant’s amended statement of claim refers. Now, the appellant while under cross examination, admitted the receipt of Exhibit E wherein three reasons were given for his removal one of the reasons, was “financial irregularities on record against you at Nsan Quarry”. He also admitted that, “it is true that I am standing trial at the magistrate court for financial impropriety.” Again, he added, “this action is not pre-empting the criminal case that was reported against me by the defendants to the police.” (Pp. 187 & 188 of the record) It is also material and noteworthy that the 5th respondent herein who testified before the trial court as DW1, stated in his evidence, that after the appellant and others were given the target of money to be remitted to him, that “for two months, the plaintiff refused to remit any money to me.” Furthermore, he mentioned, that “the money the plaintiff failed to remit to me has not been remitted up till date.” 5th respondent then added the clincher when he stated thus at page 195 of the record: “The Police at Akamkpa arrested the plaintiff accordingly and he was charged to court and convicted. A fine of N70,000 was imposed or to serve 7 months imprisonment. The plaintiff was kept in prison custody, Calabar until he paid the fine.” In Oruboko v. Oruene (1996) 7 NWLR (Pt. 462) 555, the Supreme Court considered the scope and latitude of Section 138 (1) of the Evidence Act. It held that where a plaintiff or a party for that matter, makes an allegation of crime in his pleadings, but succeeded in establishing his claims without proving the crime, the commission of crime cannot be said to be a fact directly in issue. To my mind, the invocation or otherwise of S. 138 (1) of the Evidence Act, depends largely on the averments in the pleadings and with regard to whether specific allegation of crime can properly be said to have arisen and therefore be regarded as the sole basis or foundation of the claim or defence. The facts and circumstances of each case will determine its placement/standpoint. Indeed, where in civil proceedings a party can succeed without proving criminal allegation or motive, the allegation of motive, need not be regarded as a fact in issue for the sole purpose of invoking the provision of S. 138 (1) of the Evidence Act. See Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt.73) 746;   Tewogbade v. Mrs. Obadina (1994) 4 NWLR (Pt.338) 326. Basically, and as previously stated in this judgment the claim or defence of a party, either as plaintiff or defendant depends essentially on the averments in their respective pleadings. Thus, going by our adversarial system of administration/dispensation of justice, it is the entire pleadings of the parties that are given due attention and consideration, in order to determine the claim or defence being put forward by either of the parties. It is therefore untoward to treat or rely on just specific paragraphs of the pleadings in isolation or independently of other paragraphs of the same. See A. S. E. S. A. v. Ekwenem (supra).   The law is both basic and latent that assessment of and ascription of value to evidence adduced by parties is the primary function of the learned trial judge. Hence, it is improper for an appellate court to intervene when the duty has been duly and properly carried out by the said learned trial judge. see Salihu Okino v. Yakubu Obanebira & Ors. (1999) 13 NWLR (Pt.636) 535; Eleran v. Aderonpe (2008) 11 NWLR (Pt.1097) 50.   Thus, the law is settled, that in order to reverse the decision of a trial court which is based largely or mostly on its assessment of the quality and credibility of witnesses who testified before it, an appellate court must not only entertain doubts that the decision of the trial court is right, but must also be convinced that it is wrong, mistaken or perverse. See N. E. P. A. v. Role (2000) 7 NWLR (Pt. 663) 69.  Thus, the power of an appellate court to intervene, set aside or reverse the decision of a trial court on issues of fact, is strict, striven and limited. This is more so, because an appellate court cannot commence a fresh or re – evaluation of the evidence adduced before the trial court and thereby arrive at a different conclusion from the one arrived at by the trial court. Hence, an appellate court is disentitled to inquire into disputes but to limit itself to only inquire into ways the disputes have been tried and resolved. See Attorney General Ekiti State v. Daramola (2003) 10 NWLR (Pt. 827) 104. What is more, the law is trite that civil actions are determined on the preponderance of evidence and or balance of probabilities. Thus, a party who asserts must prove his assertion as required by law, otherwise reliefs claimed by him will not be granted and afortiori, judgment will not be given in his favour. see S. C. C. (Nig.) Ltd. v. Elemadu (2005) 7 NWLR (pt. 923) 29/63; Akinyele v. Afribank Plc. (2005) 17 NWLR (pt. 955) 504/515. In the instant case, it can be glaringly seen that the appellant did not succeed in the discharge of the burden of proof which squarely lies on him. Again, in the instant case, the defence of the respondents could have succeeded without the need to prove commission of an alleged crime which was not necessary on the basis of the pleadings and issues joined therein by the parties herein.  Furthermore, before the issue of proof of special damages which should be specially pleaded and strictly proved by cogent and credible evidence can be given consideration; the appellant’s entitlement to such damages must firstly be established. In this case, neither the entitlement nor the claim to special damages were established by the appellant herein. The sole issue argued in this appeal is hereby resolved against the appellant and in favour of the respondents.
In the premise, the end result is that the appeal is devoid of merit and it is hereby dismissed by me. The respondents are entitled to costs which is fixed at N30,000.00.

KUMAI BAYANG AKAAHS, J.C.A.: I had a preview of the judgment delivered by my learned brother, Oredola JCA. I agree with his reasoning and conclusion that the appeal lacks merit and it is accordingly dismissed. I abide by the order made on costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree entirely with the reasoning set out by my learned brother, Massoud Abdulrahman Oredola, JCA, in his lead judgment just delivered as well as the conclusion that the appeal is devoid of merit. I accordingly dismiss the appeal with costs of N30,000.00 as in the lead judgment.

Appearances

Chris A. C. Ogbogu Esq.For Appellant

AND

Effiom Ayi Esq.For Respondent