CAPITAL HOTELS PLC & ORS v. ABDULLAHI (2020)

CAPITAL HOTELS PLC & ORS v. ABDULLAHI

(2020)LCN/14881(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/A/739/2018

RATIO

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

In civil cases, the burden of proof oscillates, see UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC) where the apex Court held thus:
“…This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in civil suit, the Act states thus: 131. BURDEN OF PROOF. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 132. ON WHOM BURDEN OF PROOF LIES. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 133. BURDEN OF PROOF IN CIVIL CASES. “(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.? (2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with. (3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.” 134. Standard of proof in civil cases. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.” PER BYENCHIT NIMPAR, J.C.A.

EVIDENCE: STANDARD OF PROOF IN CIVIL CASES

The standard of proof in civil cases is on the preponderance of evidence, see BUHARI V. INEC & ORS (2008) LPELR-814(SC) where it was held thus:
“The standard of proof in civil cases, is on the preponderance of evidence or the balance of probabilities. See Okuarume v. Obabokor (1965) All NLR 360; Are v. Adisa (1967) 1 All NLR 148; Odulaja v. Haddad (1973) 11 S.C. 357; (1973) 11 S.C. (Reprint) 216; Imana v. Robinson (1979) 3-4 S.C. 1; (1979) 3-4 S.C. (Reprint) 1; Elias v. Omobare (1982) 5 S.C. 25; (1982) 5 S.C. (Reprint) 13.”
Per TOBI, J.S.C ( P. 56, paras. E-F)
The other relevant principle is that a claimant succeeds on the strength of his case and not on the weakness of the defence and it has to be so because of the weight of evidence, see ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC) the Supreme Court held thus:
“A party relying on any of the above would only succeed on the strength of his case and not on the weakness of the defence. The standard of proof required is preponderance of evidence. That is to say one sides position outweighs the other.”
Per RHODES-VIVOUR, J.S.C ( P. 16, paras. A-B)
These are settled and established principles of law that hovers around the determination of civil claims principally and in addition to specialized principles of evidence law. PER BYENCHIT NIMPAR, J.C.A.

NEGLIGENCE: MEANING AND NATURE OF NEGLIGENCE

Negligence is described in the case of UTB V OZOEMENA (2007) ALL FWLR (PT. 358) 1014 at 1024, the apex Court held inter alia, on the issue of negligence that:
“Negligence is defined as lack of proper care and attention, careless behaviour”. In forensic speech, Negligence has three meanings – a) It is a state of mind in which it is opposed to intention. b) Careless conduct, and c) Breach of duty of care imposed by common law and statute resulting in damage to complainant.”
Furthermore, a party, especially the one who bears the legal burden of proof in a matter must endeavor to produce the best form of evidence in his bid to establish the existence or non existence of any given set of facts before a Court of law. Where such a party fails to so do, and the Court is not convinced by the evidence presented on valid grounds, the party has himself to blame. As rightly stated by the Apex Court in ABUBAKAR & ANOR v JOSEPH & ANOR 2008 LPELR – 48 (SC) PER TOBI JSC, wherein the Court held thus:
“The burden of proof of negligence falls on the Plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the Plaintiff.”
In this case as found by the learned trial Judge and shown in the records the particulars of negligence was not even pleaded by the Plaintiff in proof of his case. See: PURIFICATION TECHNIQUE NIG. LTD. & ORS. V. JUBRIL & ORS. (2012) LPELR-9727(SC); OKPOKAM v. TREASURE GALLERY LTD & ANOR (2017) LPELR-42809(CA); PDP & ANOR v. INEC & ORS (2008) LPELR-8597(CA).
Also in the case of UNIVERSAL TRUST BANK V OZOEMENA (2007) LPELR-3414(SC), the apex Court said thus:
“The tort of negligence is traditionally described as damage which is not too remote and caused by a breach of duty of care owed by the defendant to the plaintiff. The established legal position is that the onus of proving negligence is on the plaintiff who alleges it and unless and until that is proved, it does not shift. In other words, where a plaintiff pleads and relies on negligence by conduct or action of the defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of the duty of care. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.”
In pleading the tort of negligence, relevant facts must be pleaded and proved. Negligence is fundamentally based on or it is a question of facts and facts must always be proved before damages can be awarded. There are ingredients of the tort of negligence, and they were listed in the case of ABC (TRANSPORT CO) LTD V OMOTOYE (2019) LPELR- 47829(SC) which held thus:
“It is the law therefore that in an action for negligence, the plaintiff must prove the following essential elements: (a) The existence of a duty of care owed to the plaintiff by the defendant. (b) Breach of that duty of care by the defendant. (c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care.” See EDOK ETER MANDILAS LTD. V. ALE (1985) 3 NWLR (PT. 11) 43, OKEOWO V. CHIEF SANYAOLU (1986) 2 NWLR (PT. 23) 471, AGBONMAGBE BANK V. GENERAL MANAGER G.B. OLLIVANT LTD. (1951) 1 ALL NLR 116, MERCANTILE BANK OF NIGERIA LTD. V. ABUSOMWAN (1986) 12 NWLR (PT. 22) 270.
It is trite that a claimant must establish all three ingredients and not any two, by failing to do so, the claim will fail and be dismissed. The trial Court found all the three proved but the Appellants contend otherwise particularly the aspect of damages as a result of the flooding in the hotel which they alleged was not prove by credible evidence. They argued that the rule is that damages must be strictly pleaded and proved, see OKUNZUA V AMOSU & ANOR (supra). PER BYENCHIT NIMPAR, J.C.A.

DOCUMENT: RULE ON EVALUATION OF DOCUMENTS

Undoubtedly, a document speaks for itself but it must be linked by oral evidence to the case and the point in issue, see CPC V. INEC & ORS (2012) LPELR-15522(SC) where it was held thus:
“This issue has raised a pertinent question of the Court evaluating documents allegedly dumped on it where there is no oral evidence linking the documents to the appellant’s case. It is significant that these documents as per Exhibits P1- P201 have been tendered from the Bar with the consent of both sides. The appellant’s contention is that they have been taken as read and that it is the duty of Court to appraise the documents without more. I think the appellant has misconceived the law in this regard that where the documents so tendered are not examined in the open Court by oral evidence showing the purpose for tendering them and thus linking them precisely to a part of the case of the appellant as per the pleadings of petition. Otherwise there is no duty on the Court to embark on a cloistered justice to examine them on its own outside the Court. The Court is not supposed to do a party’s case for him. I am fortified for so holding by a plethora of cases including Jang v. Dariye (supra), Anyanwu v. Uzowuaka (supra) to mention but a few. To contend that the documents speak for themselves thereof is not to appreciate that it is the appellant’s duty to call direct evidence to support its case.”
Per CHUKWUMA-ENEH, J.S.C (Pp. 32-33, para. C) PER BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1) CAPITAL HOTELS PLC 2. SHERATON ABUJA HOTEL 3. MR. BORIS BORNMAN 4. MR. EMAD RIZK APPELANT(S)

And

ALHAJI MUSA ABDULLAHI RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of the Federal capital Territory, Abuja delivered by HON. JUSTICE YUSUF HALILU on the 5th day of July, 2018 wherein Judgment was entered in favour of the Respondent against the Appellant in Suit No FCT/HC/CV/1355/2015. The Appellants dissatisfied with the Judgment, filed a Notice of Appeal dated 4th October, 2018 and filed on the same day setting out 24 grounds of Appeal and sought the following reliefs:
a. An order allowing the appeal
b. An order setting aside those parts of the trial Court’s judgment granting Respondent’s claims.
c. An Order for immediate eviction of the Respondents from the 2nd Appellant.
d. An Order compelling the Respondent to pay for every day of his stay in the 2nd Appellant in accordance with Exhibit D2 from the date of the counter-claim to the date of the Respondent’s eviction from 2nd Appellant.
e. An Order entering judgment in favour of the Appellant in terms of the Counter-claim.

Facts leading to this appeal are straight forward and can be summarized in the following way:

The Respondent by Writ of summons filed on the 8th December, 2015 instituted an action against the Appellants by his Amended Writ of Summon seeking for various sum of money as cost of items damaged by flood that occurrence in the 2nd Appellant hotel and also general and special damages. Issues were duly joined and at the end of the trial, Judgment was entered against the Appellants. Dissatisfied with the Judgment the Appellants filed this Appeal.

The Appellants’ brief settled by D. D. DODO, SAN, dated the 21st December, 2018 was filed same day but deemed on the 17th day of September, 2020. It distilled Eleven (11) issues for determination as follows:
1. Whether the trial Court was justified in awarding the sum of N350,000,000.00 as special damages to the Respondent in the absence of legally admissible/credible evidence to ground the claim? (Ground 1, 2, 4, 7 and 10).
2. From the evidence on record, was the trial Court justified in holding that Appellants were in breach of the duty of care owed the Respondent? (Ground 3, 5 & 9)
3. Whether the trial Court was right when in granting Respondent’s claim in special damages, it relied on

the contents of Exhibit 8 to hold that Respondent’s goods were damaged in Appellants’ premises? (Ground 6)
4. Was the trial Court right in relying on Exhibit 11 to hold that Respondent incurred damages by way of physical injury to his health and property? (Ground 8)
5. Whether there was sufficient evidence on record to support the trial Court’s award of general damages in the sum (One Hundred Million Naira) in favour of the Respondent? (Ground 11).
6. Whether there was evidence on record to sustain the trial Court’s award of 3.5 Million SPG points in favour of the Respondent? (Grounds 12, 13, and 15).
7. Whether the trial Court was right when it relied on Respondent’s failure to sign Exhibit D6 as a basis to dismiss relief 1 of Appellants’ counterclaim? (Ground 16, 17 and 18).
8. Whether the trial Court was right to have relied on Exhibit 13 to hold that the Respondent was entitled to continuous occupation of suites in the 2nd Appellant’s hotel at perpetually unreviewable rate? (Ground 19 and 20).
9. Whether the trial Court was right to have dismissed relief 4 of Appellants’ counterclaim on the basis that no evidence was led

in proof of the claim? (Ground 21)
10. Whether the trial Court was right when in dismissing relief 5 of Appellants’ counterclaim, it discountenanced Exhibit D7 and refused to evict the Respondent on the basis that required notices were not properly issued? (Ground 22 and 23)
11. Whether the trial Court was justified in awarding the sum of N100,000.00 (One Hundred Thousand Naira) as cost of the suit in favour of the Respondent? (Ground 24)

The Respondent on its part filed a Respondent’s Brief settled by M. N. MOHAMMED, ESQ. Dated 7th day of May, 2019 filed on the 8th day of May, 2019. He adopted the Appellants’ issues for determination.
Thereafter the Appellants filed a Reply brief on the 1st day of June, 2020 and dated the same date.

APPELLANTS’ SUBMISSIONS
ON ISSUE ONE, TWO AND THREE
The Appellants’ counsel considered issues one, two and three together and submitted that the law guiding the grant of special damages has been settled by a plethora of decisions. He relied on EKENNIA V. NKPAKARA & ORS (1997) LPELR-1078 (SC). Anyone claiming special damages is under strict burden of proof which requires exact and

accurate particulars of the evidence relied on in proof of special damages. He cited AKINKUGBE V. EWULUM HOLDINGS (NIG) LTD & ANOR (2008) LPELR-346 (SC). He also stated that special damages are applicable to claims in tort and a Claimant is required to establish his entitlement by credible evidence. See OKUNZUA V. AMOSU & ANOR (1992) LPELR 2531 (SC).

The Appellants’ counsel states that from the above decisions, the question is has the Respondent proved his claim for special damages by placing before the trial Court credible evidence to entitle him to an award of N350,000,000.00 (Three Hundred and Fifty Million Naira)? Respondent’s claim for special damages arose from his assertion that his apartments and office suite in the 2nd Appellant were flooded sometimes in 2012 and 2014 and damaged his goods which the Appellants vehemently denied and stated that none of the items of the Respondent was destroyed.

Continuing his argument, learned counsel stated that the Respondent pleaded Exhibits 8, Exhibit 7 and 9 which are photographs of the damaged items from the flood and invoices of the purchased damaged goods. Throughout the case, the Respondent

did not lead evidence to show that the goods were damaged by the flood incidents and nothing in Exhibit 8 connected those goods to the apartments of the Respondent at the time of the flood incidents. By Exhibit D4 (Page 318 of Record), the Appellants requested for the details of the damaged goods in order to submit same to the 2nd Appellant’s insurance policy taken to cover compensation for chattels/goods of guest lodging in the hotel (see Exhibit D5) but the Respondent failed to produce any details of the alleged destroyed goods (Page 303 of record, Para 18). Even though the Respondent claim such list existed but failed to tender it as evidence to proof that such goods were warehoused in the 2nd Appellant, relied on OKUNZUA V. AMOSU & ANOR (supra).

Learned counsel also submitted that by the evidence of PW2 (Ahidjo Thomas Musa) under cross-examination, it shows that no list or inventory existed because none of the Respondent’s goods were damaged and such connotes admission of nonexistence of the list. He cited EDOSOMWAN V. OGBEYFUN (1996) LPELR-1019 (SC) to support his submission. He also stated that the trial Court wrongly relied on the contents of

Exhibit 8 in awarding the Respondent’s relief because they are inadmissible evidence. Photographs are digital evidence produced by a camera and their admissibility ought to comply with mandatory provisions of Section 84(1), (2) and 4 and Section 258(1) of the Evidence Act, 2011 which defines a computer, and a camera qualifies as a computer.

Appellants’ counsel also argued that Section 84(1) of the Evidence Act, 2011 provides the conditions for computer generated evidence to be admissible in evidence. Section 84(4) of the Evidence Act, 2011 provides that such evidence needs certification. See KUBOR & ANOR V. DICKSON & ORS (2012) LPELR-9817 (SC). It is clear that at the time Exhibit 8 was tender and admitted it had no certification as required by law and relying on it by the trial Court occasioned a miscarriage of justice to the Appellants. The trial Court had a duty to expunge the said Exhibit from record whether there was no objection to the admissibility by the Appellants, citing ONOCHIE & ORS V. ODOGWU & ORS (2006) LPELR 2689 (SC). He also submits that in awarding Respondent’s claim, the Court relied on the Respondent’s documents which

failed to relate to any aspect of his case (see Page 548 and 551 of record). Exhibits 7 and 9 are mere invoices not receipt which shows evidence of payment for the items listed. The Respondent has failed to show any connection between the contents of Exhibit 7 and 9 and the suite which he occupied in 2nd Appellant’s Hotel. He referred the Court to OGBOLE & ANOR V. OKLOHO & ORS (2015) LPELR-41772(CA).

Learned counsel further submits that Exhibits 7 and 9 were not tendered by their makers to afford the Appellants the opportunity to cross-examine him. He relied on the case of OKEREKE V. UMAHI & ORS (2016) LPELR 40035 (SC) and urged the Court to discountenance any weight placed on Exhibits 7 and 9. He also submits that the trial Court’s finding that DW3 admitted making Exhibit 6, 12 and 13 and relying on it as admission of breach of duty to care even when the Appellants denied making and question the authenticity of it is opposed to the principle of law guiding the award of special damages and not borne out by Court’s record (page 531-536 and 550, 303-304, 398, 472 of records vol. 2). He further submits that a claim for special damages cannot

succeed based on admission but on credible evidence therefore the trial Court was wrong to have relied on alleged admission by Appellants to grant such relief, referred toARAB CONSTRUCTION LTD & ANOR V. ISAAC (2012) LPELR 9787 (CA).

Appellants’ states that the trial Court relied on DW4’s evidence and held that the Appellants breached the duty of care to the Respondent because the Respondent has satisfied all the ingredients required to establish the tort of negligence (P.534-534 of records). In the case of UNIVERSAL TRUST BANK OF NIGERIA V. OZOEMENA (2007) LPELR-3414(SC), the Supreme Court set out the ingredients required as grounds to a claim in negligence. The principal question is whether the Appellants owed the Respondent duty of care and if any, was it breached? It would be pertinent to show that by the Respondent’s testimony he had total, absolute and sufficient degree of control over the suite and would usually lock his suites even when he travels for up to 8 or 6 Months and would only pay for his suites upon his return (Page 455 of records). As part of his long term commitment, the Respondent stated he had an understanding with the former

General Manager of the 2nd Appellant to repair of his suite which was backed up by a document issued to him by the Appellants (Page 456 of Records) and it is clear that there was no duty of care on the part of the Appellants to carry out repairs in the suites as he did not expressly request the Appellants to carry out any repairs and they failed to do so.

Continuing his argument, learned counsel stated that from the Respondent’s testimonies in paragraph 23 at Page 285 and paragraph 33 at 290 of the records, the Respondent never complaint of leakage of water in his suite which was under his immediate control, the Appellants cannot therefore be held to be negligent or in breach of duty of care in respect of Respondent’s suites which were not within their immediate control. He relied on I.M.N.L V. NWACHUKWU (2004) LPELR -1526 (SC) and states that there was no sufficient proximity between the Appellants and the Respondent to impute a duty to care on the Appellants. The law is trite that where a Claimant has suffered injury, damages would not be awarded against a Defendant who shows that the injury was not as a result of lack of care on his part, but by

factors under the control of the Defendant. In this appeal, the Respondent’s injury is not as result of lack of care on part of the Appellants but on such factors under his control, the Court was wrong to have awarded damages against the Appellants. He relied on BELLO & ORS V. AG. OYO STATE (1986) LPELR-764(SC) to support the submission above. DW4’s testimony is that there was no flood in the Respondent’s room that led to the damage of his properties, except some drip water from the air conditioner drain tray which he promptly fixed it but the Court wrongly categorized same as corroborating the Respondent’s allegation of negligence (Page 534-538).

Furthering his argument, learned counsel states that the trial Court misrepresented DW4’s testimony on the volume of water which resulted in the monumental damage to Respondent’s property and this affected his decision. He also argued that the Court had no discretion to choose the part of the uncontroverted evidence of DW4 to rely on, accept and act on that part of the evidence, relied onINEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR-19769(SC) where the Court held so. He further contend that the trial

Court relied on inadmissible evidence (Exhibit 8) to hold that the Respondent is entitled to special damages without properly evaluating it. He cited NWANKWO V. NWANKWO (1995) LPELR-2110 (SC) to support his submissions.

Furthermore, learned counsel states that had the trial Court carefully evaluated, weighed and considered the admissible evidence placed before it, it would have realized that the sum of N350,000,000.00 awarded as special damages in favour of the Respondent is grossly in excess of the total sum of N217,008,400.00 in the items of special damages claimed by the Respondent, but which he failed to prove and which the Court itself set out in its Judgment (See Page 540-548 of record). That even if the Respondent led credible evidence in proof of his claim, the trial Court would not have arrived at the sum awarded. He concluded that from the totality of their entire submission it is clear that the trial Court was in error when it relied on inadmissible and wrongly evaluated evidence before it.

They urge this Court to resolve these issues in favour of the Appellants and set aside the trial Court’s award of special damages to the Respondent.

SUBMISSION ON ISSUES FOUR AND FIVE
The Appellants’ counsel submitted that a trial Court has the discretion to grant reliefs in general damages but it must be exercised when there is credible evidence to prove the extent of general damages claimed by the party. He cited the case ofA.G FEDERATION V. AJIBOSE (1970) LPELR 608 (SC) and HELIOS TOWER (NIG) LTD V. MUNDILI INVESTMENTS LTD (2014) LPELR 24608(CA). The Respondent claimed the sum of N500,000,000.00 (Five Hundred Million Naira) as general damages for the loss of goodwill, earnings, profit, use of properties, physical injury and continued suffering (Page 232 of the Record). The Respondent alleged that he carries on a very successful business on a large scale in the 2nd Appellant’s premises where he also resides, for 2 years his water and electricity supply were disconnected and his office was closed down by the Appellants making impossible to transact business. He incurred losses before he was later assigned another office named Cabana 11 which made it difficult for him to regain reputation and goodwill previously enjoin with his customers.

Continuing his submissions, learned counsel

stated that the Respondent alleged that he incurred physical injuries trying to salvage his property in the flood incident in 2012 which made him seek medical attention and tendered two copies of purported medical report which was admitted as Exhibit 10 and 11. The Appellants denied all the Respondent’s allegations especially locking up his office but assert that there was a major renovation in the entire hotel and the Respondent requested for another office space and was reassigned Cabana 11 by a licence agreement executed by parties (Exhibit D2) but the trial Court awarded general damages of (One Hundred Million Naira) without properly evaluating the entire evidence before it but relied on Exhibit 11 to reach its conclusion that the Respondent suffered damages, citing the case ofKOPEK CONSTRUCTION LTD V. EKISOLA (2010) LPELR -1703 (SC). The Respondent failed to show by evidence the profits, goodwill, loss and injuries he suffered as a result of the incidents. Exhibit 10 is contrary to the Respondent’s testimony (see Page 236 and Para 30 of his witness deposition at Page 289 of the Record).

The Appellants also submitted that it is clear from the

uncontradicted testimonies of DW3 and DW4 that they visited the Respondent’s room when the complaint was made, rescued him and evacuated his properties from the suite and he was there during the repair of the leakage and he was not injured but the Court relied on his contradictory averment in his witness deposition. Had the trial Court properly evaluated the entire evidence placed before it, it will not have relied on Exhibit 11 to reach its decision. They referred to the case of AJAGBE V. IDOWU (2011) LPELR-279(SC). The failure of the Respondent to tender a proper medical report revealing the diagnosis of the injury he claimed made the report mere speculation and such is not allowed in Courts. He cited IKENTA BEST (NIG) LTD V. AG RIVERS STATE (2008) LPELR-1476 (SC). Also the two medical reports Exhibit 10 and 11 alleged to be signed by the same person (one Dr. Gambo MD) but the signatures are significantly different from each other and the trial Court would have at that point exercised restraint.

Continuing his contention, learned counsel submitted further that the trial Court placed undue weight on Exhibit 11 which was not tendered by maker as such

denied the Appellants the opportunity to cross examine him. He relied on the decision inISANSI V. STATE (2007) LPELR-8436(CA) which talks of the necessity to call a medical doctor who prepared a medical report to explain the contents of the report.

Furthermore, the Appellant’s counsel submit that the trial Court in awarding general damages, failed to evaluate the evidence led by the Appellants in challenging the Respondent’s claim in general damages even when the Respondent failed to place material evidence on record to show the nature of his business, customer base, his usual return and profit prior to the flood incident. The law is trite that the burden of proof is on the person whose case would fail if no evidence is given by either side, he relied on HONIKA SAWMILL (NIG) LTD V. HOFF (1994) LPELR-1374 (SC) to support his claim. They urge the Court to consider the totality of their arguments covering these issues and accordingly resolve issues 4 and 5 in their favour.

ISSUE SIX
The Appellants’ counsel argued that the Respondent sought for an order of the Court directing Appellants to restore his missing SPG points which he alleged stood at

an estimate of about 3.5 Million as at August, 2011 and which must have doubled as at the time of Judgment. The Respondent’s claim was due to his regular patronage at Sheraton Hotel and like brands, he was issued a loyalty Starwood preferred Guest (SPG) card by Starwood Hotels and Resorts Worldwide Incorporated, which gives members access and utilize benefit accruing to them. He claimed that the card was issued in 1999 but was given to him in 2011 when it has become invalid, the points accrued to him stood at 3,500,000 and can only be accessed and used by the SPG Officer, Financial Controller and Desk Officer of the 2nd Appellant. The Respondent alleged that he made several complaints to the Appellants on the missing points but the Appellants were complacent on the issue which was a breach of the duty owed to him to ensure properties of customers are safe.

Continuing his argument, the Appellants’ counsel submits that the Starwood SPG scheme is created to encourage customers and operates like automated machine with secret codes as used in the banks and only an SPG member can access his account. The Appellants approached the Respondent to resolve his

complaint and offered him 2,500,000 points which Respondent turned down. The minute of the meeting was admitted in evidence as Exhibit D6. The Respondent tendered Exhibit 2, 3, 4, 5 and 6 which were inadmissible but the trial Court relied on them without proper evaluation. Had the trial Court given proper consideration to the Appellants evidence, it would have known that a Starwood SPG programme is operated by Exhibit 1. Also the Respondent failed to lead evidence to show that the Appellants or their agent had access to his SPG account. The evidence given by DW1 and DW3 confirmed that the card has security features which can only be accessed by the Respondent who is the owner (Page 467 and 472 of the records), referred to AWOPEJO & ORS V. STATE (2001) LPELR-656 (SC).

The Appellants’ counsel also submits that Exhibit 4 and 5 are letters written by the Respondent’s Solicitor to the Appellants demanding the SPG points but the letter did not show Respondent’s ownership or entitlement to 3.5 million SPG points. The Appellants denied the claim arising from those exhibits. Exhibit 6 is a letter alleged to have been written by the Appellants but the

Appellants denied making the exhibit. The trial Court’s decision failed to consider Appellants’ evidence before granting this relief which is contrary to the holding of the Court in AWOPEJO & ORS V. STATE supra. Since there was no other evidence on record to justify the alleged admission of 3.5 Million SPG points, the trial Court ought to have dismissed this claim having not been proved. Appellants referred to the proviso to Section 123 of Evidence Act, 2011 and NWANKWO V. NWANKWO (1995) LPELR-2110 (SC).

The Appellants’ counsel further argued that Exhibits 2 and 3 are electronically generated evidence which failed to comply with the mandatory provisions of Section 84(1), (2) and (4) of the Evidence Act, 2011 which the Court ought to expunge these Exhibits because they are inadmissible. He cited NWAOGU V. ATUMA & ORS (2013) LPELR- 20667(SC). The allegation that the Appellants stole the Respondent’s SPG points is a criminal allegation which required proof beyond reasonable doubt. The Respondent failed to discharge the required onus of proof and also tendered and relied on Exhibit 5 which is a letter to the Appellants from the Respondent which

content states categorically that the Appellants stole the SPG points (Page 271-272 of records). There is no gainsaying that reference to a document in a pleading makes the document part of the pleading, citing the Supreme Court’s decision in SIFAX (NIG) LTD V. MIGFO (NIG) LTD (2018) 9 NWLR (PT. 1623). The trial Court proceeded to wrongly grant the relief resulting from this allegation even when the Respondent failed to prove his allegation beyond reason doubt, citing the case of AGI V. PDP & ORS (2016) LPELR-42578 (SC).

Continuing his argument, learned counsel submits that in the trial Court’s Judgment at Page 565-566 of the records directed that the Appellants to restore to the Respondent his missing SPG points which must have double as at the date of Judgment is perverse because there was no basis or material evidence on which the trial Court arrived at the decision that the points have doubled and on what hypothesis did the trial Court base its calculations to determine that 3.5 Million SPG points which were not proved inured in favour of the Respondent. We submit that there was no such evidence to ground the finding exists before the trial Court.

He cited INCAR (NIG). PLC & ANOR V. BOLEX ENTERPRISES (NIG) (2001) LPELR -1514 (SC) and EMEKA V. STATE (2014) LPELR – 23020 (SC).

Furthermore, the Appellants’ counsel states that the Respondent failed to place sufficient evidence to demonstrate how he arrived at his entitlement to 3.5 Million SPG and also failed to put in evidence his Starwood Master Statement of account which shows 18,530 SPG points remaining which he knew that the evidence would be detrimental to his bogus claim of 3.5 Million SPG points. They relied on Section 167(d) of Evidence Act, 2011 and JALLCO LTD & ANOR V. OWONIBOYS TECHNICAL SERVICES LTD (1995) LPELR 1591 (SC) to support his submission. He further states that there was evidence on record that the award, management and control of the SPG points did not lie with the Appellants but with an entity known as Starwood Hotels and Resorts Worldwide Incorporated who is a necessary party, ought to have been joined as party in order that the decision of the Court will bind it and to restore the 3.5 Million SPG points to the Respondent. Failure of the Respondent to join Starwood inc., was fatal to the proper determination of the

questions arising from this claim under Respondent’s Relief 4, referred to the case of AZUBUIKE V. PDP & ORS (2014) LPELR -22258 (SC).

Finally, the Appellants’ counsel urged the Court to hold that the trial Court was wrong when it granted Respondent’s relief 4 and held Appellants liable and to restore 3.5 Million SPG points to the Respondent, and urge the Court to resolve issue 6 in their favour.

ISSUE SEVEN
The Appellants’ submission on this issue is that Exhibit D6 (Page 337-338 of the records) is the minutes of meeting held on 2nd March, 2015, to resolve the outstanding issues such as the Respondent’s indebtedness to the Appellants, alleged damage to the Respondent’s property by flood and alleged theft of the Respondent’s SPG points between the Appellants and the Respondent. At the end of the meeting, resolutions were reached and the Appellants’ representative duly signed but the Respondent maliciously refused to do same. The Appellants pleaded Exhibit D6 but the trial Court held that “the unsigned column indicates the fact that the Plaintiff’s attention was never drawn to the document and no evidence was led to show that he refused to

sign the document” (Page 559-560 of the records). The Respondent did not controvert the contents of Exhibit D6 and as such the trial Court ought to have acted on the uncontroverted evidence and grant the Appellants their Relief 1 in the counter-claim. He cited ABEKE V. STATE (2007) LPELR- 31(SC) to support his claim that an unchallenged evidence ought to be accepted and acted upon by the Court.

The Appellants submits that the trial Court discountenanced Exhibit D6 which is tantamount to allowing the Respondent to benefit from his own wrongdoings. He relied onTERIBA V. ADEYEMO (2010) LPELR- 3143 (SC) to state that a party shall not be allowed to benefit from his wrong doing. The reason for the decision to discountenance Exhibit D6 was made in error as there was uncontroverted evidence to show that the Respondent refused to sign the document and it’s not the fault of Appellants (Page 303 and 310 of the records). He cited ATOLAGBE V. SHORUN (1985) LPELR-592(SC) to show what makes a decision perverse.

The Appellants’ counsel in continuing his argument cited ABEJE & ANOR V. APEKE (2013) LPELR 20675 (CA) to show that where parties did not deny

existence of a contract and the fact that it is unsigned still binds the parties. He also states that the trial Court took into consideration extraneous factors which did not form part of the case of the parties or evidence before it and such made its findings and conclusion perverse, citing OKHUAROBO & ORS V. AIGBE (2002) LPELR-2449 (SC). He further submits that a dispassionate consideration of the entire evidence on record would reveal that the Respondent’s failure to sign Exhibit D6 is an act of mischief.

Furthermore, the Appellants’ counsel submits that it is the duty of the Court to evaluate evidence, oral and documentary and to ascribe probative value to same and this Court is imbued with power to interfere with the evaluation and findings made by the trial Court where there is improper evaluation as was the case in this matter, relied on TUKUR V. UBA & ORS (2012) LPELR-9337 (SC). They urge the Court to resolve issue 7 in their favour, set aside the findings and conclusion of the trial Court.

ISSUE EIGHT
The Appellants’ counsel on this issue submits that their claim in reliefs 2 and 3 is for the outstanding payments owed by the

Respondent for his occupation of Room 168 and Cabana 11 which the trial Court wrongly relied on the contents of Exhibit 13 which expressly shows that the Exhibit relates only to Room 923 for which Appellants claimed outstanding bills differently under relief 1 of the Counterclaim. The law is settled that in interpretation of documents this legal maxim applies Expressio Unius Personate Est Exclusio A/terius which means the mention of one thing means an express exclusion of any other thing in the same family. This principle was applied in AGBAREH & ANOR V. MIMRA & ORS (2008) LPELR-235 (SC), OTU & ANOR V. ANI & ORS (2013) LPELR-21405(CA) and OLADOKUN V. THE MILITARY GOVERNOR OF OYO STATE & ORS (1996) LPELR-2551(SC).

Continuing his argument, learned counsel to the Appellants submits that the express mention of “…Room 923 of Sheraton Hotels and Towers Abuja…” in Exhibit 13, expressly excludes Room 168 and Cabana 11. The Appellants have challenged the authenticity of this document. By extending the application of Exhibit 13 to Room 168 and Cabana 11, the trial Court read into Exhibit 13 what does not exist in the document. He relied on

DALEK NIG LTD V. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) LPELR-916 (SC) to show that the Courts are enjoined not to read into a document what does not exist in the said document. See also ANAELO & ORS V. MADUAGWUNA & ANOR (2018) LPELR-44884. He also submits that in operating their business, the Appellants are entitled to review from time to time the tariff/rates of rooms, apartments and offices in the 2nd Appellant occupied by any guest, including the Respondent, in reaction to market forces and inflationary realities. Any decision to the contrary without credible evidence to support its basis would be tantamount to a miscarriage of Justice.

Furthermore, the Appellants submits that the trial Court’s finding that “From the above, it is obvious that Plaintiff admitted to owing the counterclaimant some rent. But there was not in evidence documents showing the exact amount” was perverse because Appellants placed on record Exhibit D2 showing the sum agreed by the parties to be paid by Respondent for Cabana 11 and which Respondent expressly admitted he had not paid for 21/2 years in his Reply and Defence to

Counterclaim at Page 366 and his oral testimony under cross examination at Page 455 of records. He cited OKOYA & ORS V. SANTILLI & ORS (1994) LPELR- 24851 (SC) to state that facts admitted need no further proof and the trial Court failed to take into consideration this evidence in arriving at its finding. They urge this Honourable Court to hold that the trial Court was wrong to rely on the contents of Exhibit 13 and to resolve issue 8 in their favour.

ISSUE NINE
The Appellants’ counsel argued that in law facts admitted by a party need no further proof as held in the case of AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT.1520). The Respondent unequivocally admitted during cross-examination that he was indebted to the Appellants, for rent on room 926 which he occupies. It is trite law that evidence elicited during cross-examination and examination in chief are credible evidence. This principle of law found expression in AKOMOLAFE & ANOR V. GUARDIAN PRESS LTD & ORS (2010) LPELR-366 (SC) and PIUS V. STATE (2015) LPELR 24446(SC). The position of the law is well settled that pleadings not denied are admitted, see CARDOSO V. DANIEL & ORS

(1986) LPELR-830 (SC). He also submits that where a party fails to deny a fact contained in a pleading, the onus of proof on the other party has been discharged, citing OWOSHO & ORS V. DADA (1984) LPELR- 2857 (SC).

Continuing his argument, the Appellants’ counsel submitted that the trial Court dismissed relief 4 of the Appellants’ counterclaim on the ground that the basis on which they arrived at the calculation of their claim was not established (Page 563 of Records). The Court did not properly consider and review paragraph 11 of Amended Statement of Defence at Page 302 and paragraph 10 and 11 of the Witness deposition of DW1 at Page 308 of records and evidence led in support of that claim which made the findings of the Court perverse, relying on LAGGA V. SARHUNA (2008) LPELR-1740(SC). The facts and evidence were never challenged or controverted by the Respondent during trial and ought to have been accepted as proved, see KAYDEE VENTURE LTD V. HON. MINISTER FCT & ORS (2010) LPELR-1681 (SC). Therefore, the trial Court was wrong to have held that Appellants failed to lead evidence in proof of relief 4 of their counterclaim

Furthermore, it is the duty of a Claimant who claims reliefs of special damages to lay before the Court concrete evidence demonstrating the loss or damages he had suffered and being claimed, which the Appellant duly satisfied this condition for proof of reliefs in special damages, citing NEKA B.B.B MANUFACTURING CO. LTD V. ACB LTD (2004) LPELR-1982 (SC). This condition was duly satisfied in their claim under relief 4 of Appellants’ counterclaim. He cited OSHINJINRIN & ORS V. ELIAS & ORS (1970) LPELR 2799 to support his above claim. He urged the Court to hold that the trial Court was wrong when it held that the Appellants failed to lead evidence in respect of relief 4 of their counterclaim, to set aside the decision of the trial Court and resolve issue 9 in favour of the Appellants.

ISSUE TEN
The Appellants’ counsel submits that the law is settled for a tenancy relationship to be validly created, the terms must be definite. See EREKU V. MILITARY GOVERNOR, MID-WESTERN STATE OF NIGERIA & ORS (1974) LPELR-1156(SC). From the Judgment at Page 528 and 565 of the Records, it is clearly seen that the Court refused relief 5 of Appellants’ counterclaim seeking to

eject the Respondent from his occupation of suites in the 2nd Appellant. The relationship between the Appellants and Respondent is an occupier/licensee and 7 days notice is sufficient to terminate the tenancy, statutory notice are not required as there was no tenancy relationship between them. The only agreement between the parties is the License Agreement for Respondent’s occupation of Cabana 11 as office which was admitted as Exhibit D2 hence, the trial Court was wrong to have refused the grant of Appellant’s relief 5 on the basis that all statutory notices were not served. He urged this Court to hold that Exhibit D7 effectively determined the relationship between the parties.

The Appellants’ Counsel also submits that it is trite law that Courts cannot award to a party, what he has not claimed as held in DINGYADI & ANOR V. INEC & ORS (2011) LPELR-950 (SC). Also it is established that a Court cannot make a case different from what the party has made. He relied on FCDA V. NAIBI (1990) LPELR-1262(SC). The Respondent’s claim before the trial Court was not occupation of the premises but damages for the alleged negligent acts of the Appellants.

But the trial Courts made a case for the Respondent when it based its decision on the grounds that the Respondent refused to pay his rent because of the pending case in Court and that all statutory notices must be served on the Respondent. This has therefore occasioned a miscarriage of Justice which this noble Court is enjoined to remedy.

The trial Court found that the 7 days notice (Exhibit D7) issued to the Respondent was made during the pendency of the case and therefore inadmissible. The relationship between parties is that of Hotel and Resident guest and the Supreme Court in A. P. LTD V. OWODUNNI (1991) LPELR-213 pronounced on the manner by which a statutory tenancy may be determined. They urged the trial Court to set aside the decision of the trial Court and resolve 10 in favour of the Appellants.

ISSUE ELEVEN
The Appellants’ counsel submits that generally, cost follow events and it’s done at the discretion of the Courts which must be exercised judiciously and judicially and must be based on the evidence available, referred to the case ofNIGERIAN BANK FOR COMMERCE & INDUSTRY & ANOR V. ALFIJIR (MINING) (NIG) LTD (1999)

LPELR-2015(SC). By the pleadings and evidence of the Respondent, it clearly reveals that the Respondent never adduced any iota of evidenced to prove his entitlement to cost of the suit. The Appellants holds that there is no basis for the trial Court’s award of N100,000.00 in favour of the Respondent. The exercise of the trial Court’s discretion does not portend a judicious and judicial exercise of discretion as exemplified inNNPC V. CLIFCO NIG LTD (2011) LPELR-2022(SC).

Continuing his contention, the Appellants’ counsel states that the cost awarded by the trial Court is without any correct and convincing reason. It was rather awarded as punitive measure to damnify the Appellants and to serve as a bonus to the Respondent contrary to the decision of theNIGERIA BANK FOR COMMERCE & INDUSTRY & ANOR V. ALFIJIR (MINIG) (NIG) LTD (SUPRA). They urged this Court to accordingly set aside the trial Court’s award of cost of N100,000.00 and to resolve issue 11 in favour of the Appellants.

In conclusion, the Appellant urged this noble Court to resolve all the issues in their favour, allow the appeal in its entirety and set aside parts of the Judgment of

the trial Court which are unfavourable of the Appellants.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent under issue one of its Brief of Argument submitted that the Appellants’ argument is misleading and misconceived. From the records before the Court, the Respondent did not only plead facts for special damages but proceeded to establish and justify these pleaded facts with documentary evidence (See Page 216 to 232, 280 to 292 of the records). He cited NIGERIAN NATIONAL PETROLEUM CORPORATION V. CLIFCO NIGERIA LIMITED (2011) 10 NWLR (PT. 1255) and ALKALI EDV CONSULTING & ANOR V. YOBE STATE GOVERNMENT & ORS (2011) 1 NWLR (PT. 1228) which support his submission on special damages must be proved by concrete evidence. The Appellants did not discredit the Respondent’s claim for special damages under cross-examination but rather facts emerged showing the extent of damage suffered and damages he is entitled to damages (Page 456 to 457 of records). The testimony and evidence of the Respondent stood unchallenged and uncontroverted by the Appellants, referred to OANDO NIGERIA PLC V. ADIJERE WEST AFRICA LIMITED (2013) 15 NWLR (1377).

The Respondent’s counsel submits that the Appellants did not deny the claim for special damages neither did they suggest a contrary sum for such a claim for special damages the Court held in OANDO NIGERIA PLC V. ADIJERE WEST AFRICA LIMITED supra that minimal evidence is needed to sustain the claim. He also submits that the Appellants did not produce any evidence to justify their contention neither did they supply facts to show the extent of special damages the Respondent is entitled to. The Appellants were not able to negate the quantum of special damages due to the Respondent which means they have admitted that the Respondent is entitled to the special damages claimed. The Respondent relied on NACENN NIGERIA LIMITED V. BEWAC AUTOMATIVE PRODUCERS LIMITED (2011) 11 NWLR (PT. 1257) and EBEINWE V. STATE (2011) 7 NWLR (PT. 1246). The Respondent urged this Court to look at all documents in the file, it will see that the Appellants did not controvert the Respondent’s claim for special damages as required by the case of AGBO V. THE STATE (2007) 10 WRN 95 and GARUBA & ORS V. OMOKHODION & ORS (2011) 15 NWLR (1269) where the Courts were enjoined to look at all

documents in its file. The Appellants alleged that PW2 under cross-examination admitted that none of the Respondent’s goods were damaged as a result of flooding but from the records of Appeal at Page 460, PW2 did not give any answer against the interest of the Respondent. The case of EDOSOMWAN V. OGBEYFUN cited by the Appellants is not relevant and also their submission that Exhibit 8 failed to meet the requirement stated in Section 84 of Evidence Act, 2011 and should be expunged is misconceived. He relied onDICKSON V. SYLVA (2017) 8 NWLR (PT.1576) to state that an evidence admitted need no certification.

Continuing his submission, the Respondent’s counsel states that Exhibit 8 was duly admitted in evidence without any objection by the Appellant, see DICKSON V. SYLVA supra. The pleadings of the Respondent had documentary evidence attached, led credence to the unchallenged facts that the Respondent is entitled to special damages. Even if the Respondent did not tender Exhibit 8 in evidence, it will not any way adversely affect the claim of the Respondent for special damages. The Respondent also submits that the Appellants did not in any way deny the

occurrence of flood that engulfed the Respondents’ apartment in their demised premises. From the record of Appeal in pages 303, 309, 342, 343, 349, 462 to 463, 468 to 469, 470 to 471, 473 to 474, it is clear that flood occurred severally in the apartments occupied by the Respondent and properties were damaged as a result, referred to Section 167 of Evidence Act, 2011. The Appellants were not only aware of the flood that occurred severally in the apartment of the Respondent but were aware as well of the devastating effects of the floods, even DW2 confirmed that in his testimony. The Appellants also admitted that the Respondent had his properties and other valuable damaged as a result of series of floods, citing Section 123 of Evidence Act, 2011. It was based on their admission that the trial Judge awarded special damages in favour of the Respondent.

The Respondent’s counsel contend that the trial Judge reasoning was based on law guiding civil matter which is balance of probabilities as stated in HAMZA V. KURE (2010) 10 NWLR (PT. 1203). A holistic review of the proceedings that transpired at the lower Court will show that the Respondent was rightly awarded

special damages. See HAMZA V. KURE supra. He urge this Court to disregard the argument canvassed by the Appellants on the award of special damages and affirm the decision of the learned Judge of special damages in favour of the Respondent. The Respondent did not dumped documents on the lower Court as alleged by the Appellants but establish clear nexus between the documents pleaded and tendered in evidence in proof of his claim on special damages (referred to Page 214 to 226, 288 to 292 of records). Also the Appellants did not object to the adoption of Witness Statement on Oath and tendering of documents as Exhibits by the Respondent as seen in page 454 of the records. The documentary evidence tendered by the Respondent before the trial Court lends credence to the oral testimony at trial, relied onEYA V. OLOPADE (2011) 11 NWLR (PT. 1259) (SC).

Continuing his contention, the Respondents counsel submits that the case of OKUNZUA V. AMOSU & ANOR and OGBOLE & ANOR V. OKLOHO & ORS cited and relied upon by the Appellants are irrelevant because the Respondent pleaded and linked the documents to the various paragraphs in the Statement of Claim filed

before the trial Court unlike the cases of OKUNZUA V. AMOSU & ANOR and OGBOLE & ANOR V. OKLOHO & ORS. Also the Appellants erroneously argued that Exhibit 7 and 9 were not tendered in evidence by their maker and cited OKEREKE V. UMAHI to support their argument. This argument is grossly misconceived because the Respondent tendered Exhibit 7 and 9 without any form of objection from the Appellants. He relied on AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253) to state that only where a document is challenged that the maker will be called, failure to do that cannot occasion miscarriage of justice. Also see JOHN V. STATE (2011) 18 NWLR (PT. 1278). He urged this Court to discountenance the submission of the Appellants. The Respondent urged this Court to discountenance the submission of the Appellants as they did not challenge the authenticity and tendering Exhibit 7 and 8 at the trial Court and to attached probative value to these documents.

The Respondent’s counsel submits that the Appellants argued that the trial Court wrongly place reliance on Exhibit 6, 12 and 13 but during trial DW3 admitted signing Exhibits 6, 12 and 13. The Appellants alleged

forgery but failed to establish the ingredient of forgery. It is law that when forgery is alleged in civil proceedings, it must be proved beyond reason doubt as held in EYA V. OLOPADE (2011) 11 NWLR (PT. 1259). The Appellants failed to establish and proof offence of forgery. Under cross examination, DW3 admitted signing Exhibit 6, 12 and 13 which confirm the authenticity of the document and the issue of forgery cannot arise. See the case of ADEFARASIN V. DAYEKH (2007) 11 NWLR (PT. 1044). And facts admitted need no proof as the Supreme Court held inAISHA JUMMAI ALHASSAN & V. MR. DARIUS DICKSON ISHAKU & ORS (2017) ALL FWLR (PT. 866) and GODWIN & ANOR V. DURO EMMANUEL & ORS (2017) ALL FLWR (PT. 901).

The Respondent’s Counsel also submits that the Appellants argued that mere admission will not ordinary entitle the Respondent special damages and relied on NNPC V. CLIFCO NIG. LTD but this line of argument is misconceived. The Respondent did not only plead but strictly proves his entitlement to special damages as provided in CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT. 1238) SC. Also the Appellants argued that the Respondent had total

control over his premises, the fact is not contained in the record of the lower Court, and Appellants only set this new case on this Appeal. The Appellate Court usually frowns at this procedure GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269), NEPA V. AUWAL (2011) 5 NWLR (PT. 1241) and TAO & SONS INDUSTRIES LTD V. GOVERNOR OF OYO STATE & ANOR (2011) 6 NWLR (PT. 1242). See also GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269). The Respondent states that he does not exercise absolute control over the Appellants premises and the Appellants owe him duty of care which the breached and the Respondent suffers damages. From the paragraphs of the Amended Statement of Claim, it established the fact that the tort of negligence was indeed committed by the Appellants.

The Respondent’s counsel further submits that in the paragraph 17 and 18 Amended Statement of Defence at Page 303 of record, paragraph 16 of the Witness Statement on Oath of TUNJI ADELEYE at Page 309 of record, paragraph 2, 3, 4, 6, 8 of Witness Statement on Oath of Mr. ENAD RIZK, at Page 342-343 of Records, paragraph 4, 5, 6 and 7 of the Witness Deposition of MR. EMMANUEL TORKULA, Page 347-348,

paragraphs 4, 5 and 6 Witness Statement on Oath of STEPHEN PATRICK, Page 349-350 of records, paragraph 2, 3, 4, 6, 7, 8 Witness Statement on Oath of the 3rd Appellant, Page 397-398 of record from all the above testimonies, they all confirmed that flood occurred in the suite of the Respondent, damage the properties and other valuable and the degree of negligence on the part of the Appellants, citing AKANIYENE & ORS V. ETIM (2013) 4 WRN.

The Respondent’s counsel contends that the admission of the Appellants on the flood strengthens the case of the Respondent as stated in ADEMOYE & ORS V. NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY & ORS (2013) WRN and ONISAODU V. ELEWUJU (2006) 13 NWLR (PT. 998) 517 SC. The arguments of the Appellants in 4.22 to 4.29 are new erroneous facts which were not before the trial Court and against the provision of the law on Appeal, referred to AKEREDOLU V. MIMIKO (2014) 1 NWLR (PT. 1388) and OBIDIKE V. STATE (2014) 10 NWLR (PT. 1414). He further submits that the Appellate Court is not a proper forum for the Appellants to present a different case entirely. He urged the Court to resolve issues 1, 2 and 3 against the Appellants.

ISSUES 4 AND 5
The Respondent’s counsel submits that the Appellants argued that the award of N100,000,000.00 in favour of the Respondent was done without due evaluation of all material evidence. This argument is misconceived because the Respondent pleaded that he sustained injury following the occurrence of flood at the Appellants premises (see P. 221 of records) and the Appellants did not do a specific denial or challenge these facts in their Amended Statement of Defence and Counter claim and failure to specifically deny the Respondent’s averment is tantamount to an admission. See SALISU V. ODUMADE (2010) 21 WRN and CENTRAL BANK OF NIGERIA V. OKOJIE (2015) 14 NWLR (PT. 1479). Exhibit K and L were tendered in evidence without objection and the trial Judge critically evaluated facts placed before Court and then awarded general damages in the sum of N100,000,000 (One Hundred Million Naira) only. See TAO & SONS LTD V. GOVERNOR OF OYO STATE (2011) 6 NWLR (PT. 1242) C.A. From the foregoing, it is clear that the Respondent is entitled to general damages.

Continuing his submission, the Respondent’s counsel submits that

the Appellants raised fresh issues in respect of Exhibit 10 and 11 which the law states that a party cannot raise fresh issues on Appeal without the leave of the Court as stated in SOGUNRO V. YEKU (2017) ALL FWLR (PT.1094). He urged this Honourable Court to exercise its Appellate jurisdiction to discountenance the argument of the Appellants. He also submits that the Appellants did not challenged the authenticity and veracity of both Exhibits 10 and 11 but focused their argument on the fact that the maker of Exhibit 11 was not called to tendered it. See AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253) and INTERDRILL (NIG) LTD V. UBA PLC (2017) 13 NWLR (PT. 1581). The learned Judge did properly evaluate all the pieces of evidence placed before him at trial and properly appropriate probative value on them. See CENTRAL BANK OF NIGERIA V. OKOJIE (Supra).

Furthermore, the Respondent pleaded and proved injury suffered and particularized general damage suffered (see P. 231 of records). See also the case of UNION BANK OF NIGERIA PLC V. CHIMAEZE (2014) 9 NWLR (PT. 1411) 166 SC. He urged this Honourable to resolve these issues against the Appellants.

ISSUE SIX
The Respondent’s counsel submits that the Appellants argued that the Respondent is not entitled to the award of 3.5 Million SPG points even when they did not denied or challenged the averment in their pleadings. See BONTUS (NIG) LTD V. SIFA PROJECT (NIG) LTD (2013) 16 WRN 130 CA and GBADAMOSI V. TOLANI (2011) 5 NWLR PT.1240 and INTERDRILL (NIG) LTD V. UBA PLC (2017) 13 NWLR (PT. 1581) to support his claim. He also submits that the Appellants alleged that the Respondent utilized about 443,200 (Four Hundred and Forty-Three Thousand, Two Hundred) point of his SPG points but failed to lead evidence to substantiate their claim. See BANJOKO V. OGUNLAJA (2013) 33 WRN and OGBEBOR V. IHASEE (2013) 42 WRN. The Appellants failed to discredit the paragraph 19 of the Amended Statement of Claim whether orally or documentary which amount to admission of fact therein. He urged this Honourable Court to hold that the Respondent is entitled to the said 3.5 Million missing points.

The Respondent’s counsel also submits that the Respondent was not cross-examined on the 3.5 Million missing points and failure to do so amounts to confirmation of the points as stated in

EMIRATE AIRLINE V. NGONADI (2014) 9 NWLR (PT. 1413). The Appellants also argued that the Respondent tendered Exhibit 2, 3, 4, 5 and 6 which are inadmissible but they failed to object to the admissibility which amounts admission as stated in NIGERIAN BOTTLING COMPANY PLC V. UBANI (2014) 4 NWLR (PT. 1398). The Appellants did not show that admission of those exhibits amount occasioned miscarriage of Justice. See OGHENEOVU V. FEDERAL REPUBLIC OF NIGERIA (2013) 11 WRN and ARCHIBONG V. STATE (2007) 10 WRN 1. The Respondent states that the admission of those exhibits did not occasion miscarriage of Justice because the trial Court disregarded the argument put forward by the Appellants. Without evidence to proof, the Appellants alleged that the made a complaints to the Starwood Headquarters at Brussels on the 3.5 SPG missing points. The Appellants did not tender the copy in evidence because it will be unfavourable to their case. See Section 167(d) of the Evidence Act, 2011 and the caseADEGBITE V. AMOSU (2016) 15 NWLR (PT. 1536).

Continuing his argument, the Respondent’s counsel states that the Appellants did not deny nor cross examine the Respondent on the

content of Exhibit 4 and 5 and failure to cross examine the exhibit amounts to acceptance as stated in OLOWU V. BUILDING STOCK LTD (2018) 1 NWLR (PT. 343) and see also Section 123 of Evidence Act, 2011. The Appellants argued that Exhibit 6 did not emanate from them but from the testimony of DW3 at trial, he unequivocally admitted signing Exhibit 6, 12 and 13 (P.472 of records). The signature on Exhibit 6, 12 and 13 confirmed the 3rd Appellant as maker of them see Section 83(4) of Evidence Act, 2011; ONA V. ATANDA (2000) 7 WRN and ADEFARASIN V. DAYEKH (2007) 11 NWLR (PT. 1044). He stated that the Appellants argued that Exhibit 2 and 3 are inadmissible documents because they did not complied with the provision of Section 84 of Evidence Act, 2011, he submit further that relevance govern admissibility as held in KUBOR V. DICKSON (2013) 26 WRN. Exhibit 2 and 3 are relevant in respect to the 3.5 Million SPG points claim by the Respondent and further confirm that the benefit accruing from points could only be assessed by SPG OFFICER, FINANCIAL CONTROLLER, DESK OFFICER. The Appellants further argued that paragraph 16 to 27 of Amended statement of claim alleged

criminality but the Respondent’s counsel calls on this Honourable Court to use their power to look through the said paragraphs. See EDILCON NIGERIA LTD V. UNITED BANK FOR AFRICA PLC (2017) 18 NWLR (PT. 1596). The letter from ZANNA KALOMA ALI & CO (at P. 271 of record) an official communication from Respondent to Appellant did not evince any form of criminal allegation but it was suggestive of suspicion which cannot secure a conviction as held ZUBAIRU V. STATE (2015) 16 NWLR (PT. 1486). Suspicion of a crime cannot be proof beyond reason doubt and the case ofAGI V.PDP & ORS and Section 135(1) of Evidence Act, 2011 cited by the Appellants are irrelevant.

The Respondent contends that the decision of the trial Court is not perverse because the Appellants led credible evidence on the issue of the 3.5 Million SPG points as seen in 275 of records. The Respondent was not challenged on under cross-examination as to the 3.5 Million SPG points. See TYONEX NIGERIA LTD V. PFIZER LTD (2011) ALL FWLR (PT.564) and SIMON V. STATE (2017) 8 NWLR (PT.1566) and GBADAMOSI V. TOLANI (2011) 5 NWLR (PT. 1241). Generally, the Respondent is not required by law to produce

additional evidence to support his claim for 3.5 Million SPG points having adopted his Witness Statement on Oath before the trial Court as stated in AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253). He also contend that the Appellants argued that document which the 3.5 Million SPG is anchored is inadmissible even though they did not object to the admissibility at the time it was tendered therefore the Appellate Court cannot interfere as stated in MAGAJI V. DANKIRANA (2015) 3 NWLR (PT. 1447).

Furthermore, the Appellants’ argument on tendering the remaining 18,530 SPG point and relied on Section 167(d) of the Evidence Act, 2011. The said document was pleaded before the Respondent’s Statement of Claim Amended. It is trite law that the mistake of the Counsel should not be visited on the litigants as held in WASSAH V. KARA (2015) 4 NWLR (PT. 1449). The Appellants also relied on AZUBUIKE V. PDP & ORS to argue that Starwood inc. ought to be joined as a party, the Respondent has no claim against Starwood. Even Starwood advised the Respondent to approach the Appellants because the benefit can only be accessed by SPG OFFICER, FINANCIAL CONTROLLER, DESK

OFFICER. It is law that a party cannot be compel to prosecute whom he has no desire to as held in AKUNWATA OGBOGU MBANEFO V. NWAKAIBE HENRY MOLOKWU & ORS (2014) LPELR-22257 (SC) and GREEN V. GREEN (1987) NWLR (PT. 61). He further submits that the dispute between the Respondent and the Appellants was effectively determined by the trial Court without the presence of Starwood Hotels and Resort Worldwide Incorporated. He urged your Lordships to resolve Issue 6 against the Appellants.

ISSUE 11
The Respondent’s counsel submitted that the Appellants alleged that there was no basis for the award of the sum of N100,000.00 as cost against them and he cited NIGERIAN BANK FOR COMMERCE & INDUSTRY & ANOR V. ALFIJIR (MINING) (NIG) LTD and NNPC V. CLIFCO NIG LTDto support his argument. The law is settled that the award of cost is discretionary. The Respondent also states that the trial Court upon evaluation of evidence awarded the cost of N100,000.00 in favour of the Respondent even though he sought for N500,000,000.00 as cost and ordinarily, the Appellate Court will not interfere with the award of cost by a trial Court. He relied on ADIM V. NIGERIAN BOTTLING COMPANY LTD & ANOR (2010) 9 NWLR (PT. 1200) to support his argument.

Continuing his submission, the Respondent counsel states that the Appellants ought to furnish this Court with material facts as to why cost should not be awarded but the Respondent has established his case on the balance of probability. He citedINTERDRILL NIG. LTD V. UBA (2017) ALL FWLR 1177 (PT. 904). Based on preponderance of evidence, the trial Court awarded cost in the paltry sum of N100,000.00 against the Appellants. The Appellants did not sought the leave of this Honourable Court before raising an issue of cost as a ground of appeal because appeal does not lie as of right against an award of cost as stated in the case of OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1195).

Furthermore, the Respondent’s counsel urge this Court to discountenance issue 11 as failure to obtain leave of this Honourable Court before appealing on cost is highly fatal to this appeal and also to resolve this issue against the Appellants.

ISSUE NINE
The Respondent’s counsel submits that the Appellants argued that they are entitled to Relief 4 sought in the counter-claim before the

lower Court but failed to plead facts and evidence considering the fact that a Counter-claim is an independent suit that must be established and proved. He relied on CENTRAL BANK OF NIGERIA V. NIGERIA DEPOSIT INSURANCE CORPORATION (2016) 3 NWLR (PT. 1498) and AKPANG V. AMIYE (2015) 18 NWLR (PT. 1490) to support his argument. The Appellants did not lead credible evidence at trial to justify the claim on Relief 4 and he urged the Court to dismiss the Appellants’ argument on issue 9.

ISSUE EIGHT
The Respondent’s counsel submits that the argument of the Appellants that the trial Judge relied on Exhibit 13 in refusing Relief 2 and 3 sought in the Appellants Counter-claim is grossly misconceived. The Respondent denied the Appellants’ pleaded facts in respect of Room 168 and Cabana II and the Appellants did not discredit or challenged the averment and pleaded facts of the Respondent at paragraph 7 and 8 of his Reply to Appellant Statement of Defence. He cited GBADAMOSI V. TOLANI (2011) 5 NWLR (PT. 1240) to state that unchallenged evidence can be evaluated by the Court to see whether it can sustain the claim.

Continuing his submission, the

Respondent’s counsel states that failure of the Appellants to challenged afore stated paragraphs amount to admission. The Appellants did not by way of Cross-Examination link the Respondent with the occupation of Room 168 and Cabana II but his questions are in line with Room 923 and 926. See PIUS V. STATE (2015) LPELR- 24446 (SC). He further states that the trial Judge was right to refused the claims of the Appellants in relief 2 and 3 of their Counter-claim and urged this Honourable Court to resolve this issue against the Appellants.

ISSUE TEN
The Respondent’s counsel contends that the Appellants’ argument on this issue is on the content of Exhibit D2 at P. 312 of records and P. 315 of record shows clearly that the Respondent is to pay the sum of N4,110 per day as license fee and issuing him a 7 days’ notice is untenable in law because 7 days’ notice is only issued to weekly tenants. Section 8 of the Recovery of Premises Act is not applicable to the Respondent and he urged this Honourable Court to discountenance the submission of the Appellants in this regard.

Continuing his contention, the Respondent’s counsel states that Exhibit D2 was

tendered in an inadmissible form because the document ought registered and Stamp Duty paid accordingly, however, this procedure was not duly complied with. See Section 6 and 7 of the Land Instrument Registration Law. Such document ought to be expunged from Court record as stated in ONOCHIE & ORS V. ODOGWU & ORS (2006) LPELR 2689. He also states that Exhibit D7 is a document made during the pendency of the case. The suit commenced on the 16th day of May, 2015 and the Exhibit D7 was issued 27th day of July, 2015. See NBC PLC V. UBANI (2014) 4 NWLR (PT. 1398). He urged this Honourable Court to disregard Exhibit D7 being a document made during the pendency of suit before the lower Court and to resolve this issue 10 against the Appellants.

ISSUE SEVEN
The Respondent’s counsel submits that Exhibit D6 at P337 of records a document made by Appellants which the Respondent did not append his signature and an unsigned document is worthless or of no probative value as held in NASIRU GARBA DANTIYE & ANOR V. IBRAHIM YUSHUA’U KANYA & ORS (2008) LPELR 4021 and NATASHA V. STATE (2017) 18 NWLR (PT.1596). The Appellants did not challenge or at least

elicit reasons why the Respondent did not append his signature on Exhibit D6. He relied on CBN V. OKOJIE (2015) 14 NWLR (PT. 1479) where the Court states that unchallenged evidence should be relied on. He further states that Exhibit D6 is not binding on the Respondent and urged this Honourable Court to resolve issue 7 against the Appellants.

Finally, the Respondent’s counsel urged this Honourable Court to dismiss this Appeal and award the sum of N1,000,000.00 as cost against the Appellants.

APPELLANT’S REPLY
In replying to the Respondent’s Brief of Argument, the Appellants submitted that the Respondent alleged that he pleaded and tendered documentary evidence in support of his claim for special damages and thus discharged the burden of proof placed upon him, but the contention is that Exhibit 8 relied upon in awarding damages is inadmissible in law. He cited NWAOGU V. ATUMA & ORS (2013) LPELR 20667 (SC) to support his submission. He further states that the Respondent’s contention that the Appellants did not object to the admissibility of Exhibit 7, 8 and 9 and cannot complain at this stage is untenable. The Appellants are challenging the

reliance of the trial Court on an inadmissible document in law whether it was objected or not. The law is settled that where a document is inadmissible in law, it is the duty of Court to expunged it whether or not the party complaining challenged the admissibility of the document as stated inMUSA V. STATE (2019) LPELR-46350 (SC) and ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (Supra).

Continuing their submissions, the Appellants’ counsel states that the law is that where documents are tendered in evidence and does not connect to the case, it amount to dumping on the Court and where the Court relied on it amount to making a case for the party as held in OKEREKE V. UMAHI & ORS (2016) LPELR- 40035 (SC) cannot stand. The Respondent argued that the Appellants never deny the occurrence of the flood and he referred to paragraph 17 of the Amended Statement of Defence, the law states that a Plaintiff must succeed on the strength of his case and not the weakness of the defence, citing ANYAFULU & ORS V. MEKA & ORS (2014) LPELR-22336(SC). The law also states that to constitute a denial of the averments in a claim, the entirety of the pleading of the

party must be considered and not isolated paragraphs therein.

The Appellants’ counsel also states that the 4th Appellant’s deposition at Page 342-343 of record constitutes an outright denial of the Respondent’s Claim then it was wrong to state that the Appellants never challenged his averments. The law states that he who asserts must prove as heldUNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR 46333 (SC). He also states that having denied the averments in the Respondent’s pleadings and challenged the evidence adduced, the onus and burden of proof of special damages was on the Respondent who regrettably, could not discharge same. And failure to discharge the onus of proof which rest squarely on him is for his case to fail in toto as stated in BUHARI V. INEC & ORS (2008) LPELR-814(SC). He further stated that the Respondent argued that by the evidence of DW4 the Appellants have admitted flood but from the testimony of the DW4 at Page 349 of records, it cannot constitute an admission of liability for flooding to warrant the award of special damages in the sum the trial Court awarded.

The Appellants’ counsel further states that the Respondent’s

averment that the Appellants admitted facts stated in their Statement of Claim is misconceived. Appellants reliedOMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR 24803(SC) to explain admission of facts. Nowhere did the Appellants admit liability for the Respondent’s alleged damaged property, assuming without conceding that the Appellants admitted the said facts, same cannot take the place of proof as the standard of proof in an action for special damages is strict proof. He urged this Court to discountenance the case of HAMZA V. KURE (2010) 10 NWLR 1203 cited by the Respondent and hold that the Respondent did not prove his entitlement to special damages strictly and set aside the Judgment of the trial Court. The Respondent alleged that the Appellants did not discredit the Respondent’s claim for special damages under cross examination, but it is not whether the Appellants discredit the evidence but whether by the strength of the evidence he was able to prove his claim on the preponderance of evidence and balance of probabilities.

Continuing his submission, the Appellants’ counsel submits that the Respondent contend that he made a mistake in not

tendering the SPG Account which reflecting 18,530 SPG points but Section 167 (d) of Evidence Act, 2011 provides that the evidence which ought to be produced and is not produced is presumed to be against the party refusing to produce it. Failure of counsel cannot be regarded as mistake and the Respondent is urging the Court not to visit it on the Respondent. He further submits that the Respondent has woefully failed to strictly prove his entitlement. He relied on NEKA B.B.B MANUFACTURING CO. LTD V. ACB LTD (2004) LPELR 1982(SC). The Respondent cited EYA V. OLOPADE (2011) 11 NWLR (PT. 1259) 505 SC to erroneously argue that when documentary evidence supports oral evidence, the oral evidence becomes more credible. The correct position of the law is that oral evidence cannot be allowed to add, subtract or vary the contents of documentary evidence as stated in ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541 (SC) and AGBAREH & ANOR V. MIMRA & ORS (2008) LPELR 43211 (SC).

Furthermore, the Appellants’ counsel urged the Court to discountenance GARUBA V. OMOKHODION cited by the Respondent as inapplicable to the facts of this case

and the Appellants have maintained consistency in their case from the trial Court. He also submits that the Respondent erroneously argued that the Appellants admitted the tort of negligence and are therefore liable. In law, for a plaintiff to succeed in action of negligence, he must plead and prove the facts of negligence as stated in KOYA V. UBA LTD (1997) LPELR 1711(SC) but the Respondent failed to prove the alleged negligence at the trial Court.

Finally, the Appellants urged the Court to discountenance the argument of the Respondent and allow the appeal.

RESOLUTION
After a careful consideration of the Notice of Appeal, the record of appeal and the Briefs of learned counsel for the parties, the Court shall adopt the format of presentation adopted by the Appellants who initiated the appeal. Doing that would resolve all the areas of dissatisfaction with the Judgment.

The first sets are issues 1, 2, 3 argued together and they basically revolve around the question of negligence, proof and award of damages based on Exhibit 8 as done by the trial Court. In civil cases, the burden of proof oscillates, see UNION BANK V. RAVIH ABDUL & CO. LTD

(2018) LPELR-46333(SC) where the apex Court held thus:
“…This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in civil suit, the Act states thus: 131. BURDEN OF PROOF. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 132. ON WHOM BURDEN OF PROOF LIES. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 133. BURDEN OF PROOF IN CIVIL CASES. “(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.? (2) If the party referred to in Subsection (1) of this section adduces evidence which

ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with. (3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.” 134. Standard of proof in civil cases. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.” The burden of proof placed on the Appellant would appear discharged if considered against the backdrop of the veracity of the content of Exhibits D2, D2A, D2B and D3. The Respondent needed to have done much more than it did to show that indeed, the Appellant breached the contract of the letter of credit by failure to pay the beneficiary (Vertika International Limited) despite the later having confirmed payment on the same letter of credit. For the contention of non-payment of the Respondent to avail, a statement from the Beneficiary or the corresponding Bank, like Exhibits D2, D2A, and D2B would have swayed the balance of probabilities in favour of the

Respondent. The law is that the burden of proof is on the party who would lose if no evidence were adduced. Generally, in civil proceedings the burden of proof though said not to be static, it is on the vulnerable party to lead credible evidence in proof to the contrary. SEE ADEGOKE VS ADIBI (Supra), ONWUAMA VS EZEOKOLI (Supra), OYOVBIARE VS OMAMURHOMU (Supra) and IKE VS UGBOAJA (Supra). See also ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt.19) 799; OJOMO VS IJEH (1987) 4 NWLR (Pt. 64) 216; ABIODUN VS ADEHIN (1962) 2 SCNLR 305; REYNOLDS CONSTRUCTION CO. LTD. VS OKWEJIMINOR (2001) 15 NWLR (Pt.735) 87. The onus and burden of proof lie on the Respondent in this suit. Regrettably, the Respondent has done little to discharge the burden. We must apply law as it is. The effect of failure to discharge the onus of proof in civil cases rests squarely on the plaintiff. This was correctly applied in the Judgement of the trial Court at pages 314-337 of the Record of Appeal as well as in the minority judgement of Adamu Jauro JCA at pages 432-438 of the Records of Appeal.”
Per BAGE, J.S.C ( Pp. 13-16, paras. D-E)
The standard of proof in civil cases is on the

preponderance of evidence, see BUHARI V. INEC & ORS (2008) LPELR-814(SC) where it was held thus:
“The standard of proof in civil cases, is on the preponderance of evidence or the balance of probabilities. See Okuarume v. Obabokor (1965) All NLR 360; Are v. Adisa (1967) 1 All NLR 148; Odulaja v. Haddad (1973) 11 S.C. 357; (1973) 11 S.C. (Reprint) 216; Imana v. Robinson (1979) 3-4 S.C. 1; (1979) 3-4 S.C. (Reprint) 1; Elias v. Omobare (1982) 5 S.C. 25; (1982) 5 S.C. (Reprint) 13.”
Per TOBI, J.S.C ( P. 56, paras. E-F)
The other relevant principle is that a claimant succeeds on the strength of his case and not on the weakness of the defence and it has to be so because of the weight of evidence, see ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC) the Supreme Court held thus:
“A party relying on any of the above would only succeed on the strength of his case and not on the weakness of the defence. The standard of proof required is preponderance of evidence. That is to say one sides position outweighs the other.”
Per RHODES-VIVOUR, J.S.C ( P. 16, paras. A-B)
These are settled and established principles of law that hovers

around the determination of civil claims principally and in addition to specialized principles of evidence law.

The main claim is founded on negligence which resulted in damages awarded by the Court below against the Appellants. Negligence is described in the case of UTB V OZOEMENA (2007) ALL FWLR (PT. 358) 1014 at 1024, the apex Court held inter alia, on the issue of negligence that:
“Negligence is defined as lack of proper care and attention, careless behaviour”. In forensic speech, Negligence has three meanings – a) It is a state of mind in which it is opposed to intention. b) Careless conduct, and c) Breach of duty of care imposed by common law and statute resulting in damage to complainant.”
Furthermore, a party, especially the one who bears the legal burden of proof in a matter must endeavor to produce the best form of evidence in his bid to establish the existence or non existence of any given set of facts before a Court of law. Where such a party fails to so do, and the Court is not convinced by the evidence presented on valid grounds, the party has himself to blame. As rightly stated by the Apex Court in ABUBAKAR & ANOR v JOSEPH & ANOR

2008 LPELR – 48 (SC) PER TOBI JSC, wherein the Court held thus:
“The burden of proof of negligence falls on the Plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the Plaintiff.”
In this case as found by the learned trial Judge and shown in the records the particulars of negligence was not even pleaded by the Plaintiff in proof of his case. See: PURIFICATION TECHNIQUE NIG. LTD. & ORS. V. JUBRIL & ORS. (2012) LPELR-9727(SC); OKPOKAM v. TREASURE GALLERY LTD & ANOR (2017) LPELR-42809(CA); PDP & ANOR v. INEC & ORS (2008) LPELR-8597(CA).
Also in the case of UNIVERSAL TRUST BANK V OZOEMENA (2007) LPELR-3414(SC), the apex Court said thus:
“The tort of negligence is traditionally described as damage which is not too remote and caused by a breach of duty of care owed by the defendant to the plaintiff. The established legal position is that the onus of proving negligence is on the plaintiff who alleges it and unless and until that is proved, it does not

shift. In other words, where a plaintiff pleads and relies on negligence by conduct or action of the defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of the duty of care. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.”
In pleading the tort of negligence, relevant facts must be pleaded and proved. Negligence is fundamentally based on or it is a question of facts and facts must always be proved before damages can be awarded. There are ingredients of the tort of negligence, and they were listed in the case of ABC (TRANSPORT CO) LTD V OMOTOYE (2019) LPELR- 47829(SC) which held thus:
“It is the law therefore that in an action for negligence, the plaintiff must prove the following essential elements: (a) The existence of a duty of care owed to the plaintiff by the defendant. (b) Breach of that duty of care by the defendant. (c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care.” See EDOK ETER MANDILAS LTD. V. ALE (1985) 3 NWLR (PT. 11) 43, OKEOWO V. CHIEF SANYAOLU

(1986) 2 NWLR (PT. 23) 471, AGBONMAGBE BANK V. GENERAL MANAGER G.B. OLLIVANT LTD. (1951) 1 ALL NLR 116, MERCANTILE BANK OF NIGERIA LTD. V. ABUSOMWAN (1986) 12 NWLR (PT. 22) 270.
It is trite that a claimant must establish all three ingredients and not any two, by failing to do so, the claim will fail and be dismissed. The trial Court found all the three proved but the Appellants contend otherwise particularly the aspect of damages as a result of the flooding in the hotel which they alleged was not prove by credible evidence. They argued that the rule is that damages must be strictly pleaded and proved, see OKUNZUA V AMOSU & ANOR (supra). The Respondent in proof of alleged damage to his properties tendered photographs admitted as Exhibit 8 while invoices were admitted as Exhibit 7 and 9. The Respondent did not plead that the goods listed in the invoices were actually in the room flooded to now assume they were destroyed. If where the goods were kept, was not so pleaded, can there be evidence to prove what was not pleaded? Certainly not. As further argued by the Appellants, were the pictures in Exhibit 8 showing the room occupied by the

Respondent? There was no connection between Exhibit 8 and the room flooded and I agree with the Appellants assertion that the piece of evidence was dumped on the Court. Undoubtedly, a document speaks for itself but it must be linked by oral evidence to the case and the point in issue, see CPC V. INEC & ORS (2012) LPELR-15522(SC) where it was held thus:
“This issue has raised a pertinent question of the Court evaluating documents allegedly dumped on it where there is no oral evidence linking the documents to the appellant’s case. It is significant that these documents as per Exhibits P1- P201 have been tendered from the Bar with the consent of both sides. The appellant’s contention is that they have been taken as read and that it is the duty of Court to appraise the documents without more. I think the appellant has misconceived the law in this regard that where the documents so tendered are not examined in the open Court by oral evidence showing the purpose for tendering them and thus linking them precisely to a part of the case of the appellant as per the pleadings of petition. Otherwise there is no duty on the Court to embark on a cloistered justice

to examine them on its own outside the Court. The Court is not supposed to do a party’s case for him. I am fortified for so holding by a plethora of cases including Jang v. Dariye (supra), Anyanwu v. Uzowuaka (supra) to mention but a few. To contend that the documents speak for themselves thereof is not to appreciate that it is the appellant’s duty to call direct evidence to support its case.”
Per CHUKWUMA-ENEH, J.S.C (Pp. 32-33, para. C)

Furthermore, the Appellants had requested the list of items destroyed from the Respondent, he declined to give a list and suddenly came up the invoice. If he had given the list, it would have expectedly conformed with the invoice he sought to rely on as list of items destroyed. Furthermore, PW2 denied the existence of a list or inventory taken when the flooding took place. Refusal to give a list when the incident was fresh has certainly destroyed the genuineness of Exhibit 7 and 9 which were not also shown to have been in the room that was flooded and denied the Appellants the benefits of the insurance policy taken to cover such incidences on the premises. The Respondent did not also show whether they were in use

or just stored in the room. The room is a hotel room and the space to accommodate all item listed should have been established by evidence and this is also another issue which Respondent must have established by credible evidence. The burden is on the Respondent as held in the case of OKUNZUA V AMOSU & ANOR (supra). Another damaging feature of Exhibit 8 is the nature of the Exhibit being a picture, an electronically produced picture which has failed to comply with Section 84 of the Evidence Act, it says:
84. (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible. if it is shown that the conditions in Subsection (2) of this section are satisfied inrelation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this section are:
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly for store or process information for the purposes of any activities regularly carried on over that period,

whether for profit or not by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces is derived from information supplied to the computer in the ordinary course of those activities.
A camera is a device which also qualifies as a computer and therefore must conform with Section 84 of the Evidence Act. The Respondent argued that even if Exhibit 8 is discountenanced, it will not remove the fact of flooding which caused damage. The argument is flawed because in establishing negligence, cause of damage must be established by evidence and without

Exhibit 8, the trial Court could not have determined what was damaged, so as to inform the quantum of damages to award. Another argument which discredits the reasoning proffered by the Respondent is that if Exhibit 8 is not electronically produced, it should have come with their negatives to prove that it was not produced by computer device. The relevant supporting evidence and certification were not presented by the Respondent as required by law and the case of KUBOR & ANOR V DICKSON & ORS (SUPRA) where the apex Court held thus:
“Granted, for the purpose of argument, that Exhibits “D” and “L” being computer generated documents or e-documents downloaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011. … There is no evidence on record to show that appellants in tendering Exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was

no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011. No wonder therefore that the lower Court held, at page 838 of the record thus:- “A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011.”
Per ONNOGHEN, J.S.C ( Pp. 48-50, paras. F-D).

Failure to handle Exhibit 8 as required by law affects the document and it must be expunged. The Respondent contended that there was no objection from the Appellants, Exhibit 8 is an illegal document which must be handled as the law stipulates and must be expunged, seeBREDERO (NIG.) V. SHYANTOR (NIG.) LTD & ORS (2016) LPELR-40205 (CA) where the Court held thus:
“… it is settled law that the Court can expunge an inadmissible document admitted with or without objection, see NIPC LTD. V. THOMPSON ORGANIZATION LTD. (1969) 1 NLR 99 at 104 where LEWIS, J.S.C. stated the law as follows:- “It is of course the duty of counsel to

object to admissible evidence and the duty of trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is admitted still through oversight or otherwise then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”
Per MUSTAPHA, J.C.A ( P. 30, paras. C-E)
Exhibit 8 is not the kind of document which is legally admissible and subject to no objection. There is a difference between the two types of documents and their handling by the Court. An inadmissible evidence remains inadmissible and can be expunged at the stage of judgment. See THE BRITISH INDIA GENERAL INSURANCE COMPANY NIGERIA LTD V. THAWARDAS (1978) LPELR-3165 where the Supreme Court held thus:
“It is of course the duty of counsel to object to inadmissible evidence and the duty of the trial Court any way to refuse to admit inadmissible evidence, but if not withstanding this evidence is still through oversight or otherwise admitted then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted. This has long

been the case but it is clearly set out in the judgment of this Court in Bada v. The Chairman, LEDB. S.C. 501/65 of the 23rd of June, 1967.”
Per OBASEKI, J.S.C ( Pp. 10-11, paras. G-B).

The Exhibit expunged is part of the foundation and proof of damage which informed the award of damages, without it the award must collapse. The trial Judge erred when he relied on Exhibit 8 to award damages in the sum of N350,000,000.00 (Three Hundred and Fifty Million Naira). The said sum is also contrary to the claim in the sum of N217,008,400 (Two Hundred and Seventeen Million, Eight Thousand Four Hundred Naira). A Court cannot award any amount in excess of what is in the pleadings. See JERIC NIG LTD V. UBN PLC (2000) LPELR-1607(SC) which held as follows:
“A Court has no authority to award more than what is claimed although it may award less. See for example Ekpenyong v. Nyong (1975) 2 SC 71; Obioma v. Olomu (1978) 3 SC 1.”
It is also a jurisdictional issue as held by the apex Court in EAGLE SUPER PACK (NIG) LTD V A.C.B. PLC (2006) LPELR-980(SC) where TOBI, JSC said thus:
“It is elementary law that a Court is bound by the relief or reliefs sought.

The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give to a party what he did not claim. That is completely outside our procedural law. The rational behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party and give him over and above what he has claimed. While a Court has jurisdiction to award less than what a party claims, it has no jurisdiction to award more than what he claims.”

The award of N350,000,000.00 has many impeaching factors which makes it impossible to be sustained.

On Exhibits 7 and 9 which were not tendered by their makers, the law is that they can be tendered if they comply with laid down procedure for admissibility but that is totally different from the relevant weight that should be attached to the said documents. A document should be tendered by its maker so that he can be cross examined and relevant weight be attached to it. When the maker is not available for

cross-examination, the document cannot attract the intended value, infact it cannot have any weight, it is trite that a witness who tenders a document or presents evidence must be available for cross examination before it can evaluated for weight. See EMMANUEL V UMANA & ORS (2016) LPELR- 40659(SC) where the apex Court held thus:
“However, I wish to further emphasize on the rather reckless behavior of the Court below in refusing to be guided by the decision of this Court but relied on its own decision to decide that it was unnecessary to call the makers of documents Exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examination for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at

322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS. INEC (2011) 9 NWLR (Pt.1253) 425 at 451.”
From above, Exhibits 7 and 9 not tendered by the maker cannot have any probative value. The trial Court erred in placing weight on them to find for the Respondent and award special damages. That finding is perverse and is hereby set aside.

Related to above is the trial Court’s finding (page 550) that the Appellants admitted making Exhibits 6, 12 and 13 and relied on them as admission to award special damages, this was in spite of the denial in the pleadings and in the box where DW3 denied the content of the exhibits and said the content were not his but the signature was his own. In law, such denial means the letters were not those of whose signature is on the documents. In any case, does it amount to admission? Admission is defined in the case of OMISORE & ORS V AREGBESOLA (2015) LPELR-2480(SC) as follows:
“An admission has been defined also as “a voluntary acknowledgment

made by a party of the existence of the truth of certain facts which are inconsistent with his claim in an action”. See Vockie v. General Motors Corp, Chevrolet Division D.C. Pa. 66 FRD 57, 60 (Black Dictionary, Sixth Edition of page 47) per Fabiyi, JSC (P. 25). See also Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 which defines admission further as:- “a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of the adversary.”
Per OGUNBIYI, J.S.C.
Admission was explained in the case of NBCI V INTEGRATED GAS (NIG) LTD & ANOR (2005) LPELR-2016(SC) as follows:
“It is trite law that in civil cases, admissions by a party are evidence of facts asserted against but not in favour of such a party although they are not estoppels or conclusive against the party against whom they are tendered. Speaking on the place of admissions in civil cases, Beoku-Betts, J., in Okai II v. Ayikai II (1946) 12 W.A.C.A. 3, had this to say:- “The place of admission in civil cases is admirably stated in Halsbury’s Laws of England, 2nd Edition, Vol. 13, pages 574 and 575

thus:- ‘In civil cases, statements made otherwise than by way of testimony in Court by a party to the proceedings are evidence of the truth of the facts asserted but not in favour of such party. Although what a party has said on some former occasion may, without injustice be presumed to be true as against himself, yet no presumption of truth arises when such statements are tendered in evidence in his favour. As the value of an admission depends on the circumstances in which it was made, evidence of such circumstances is always receivable to affect the weight of the admission. Thus the party against whom it is tendered may show that it was made under an erroneous view of the law or in ignorance of the facts, or when his mind was in an abnormal condition.”
The Appellants never admitted facts relevant to the findings of the trial Judge that warranted the award of special damages. The Appellants denied the documents in their pleadings and evidence in Court. There cannot be admission where the facts are disputed, admission must be unequivocal and the evidence of DW3 and DW4 does not fall into such category. See NWANKWO V. NWANKWO (1995)

LPELR-2110(SC) where the apex Court held thus;
“Formal admissions are admissions made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in a pleading need not be proved any longer but are taken as established. Formal admissions may also take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit.” See Chief Aaron Nwizuk and Ors v. Chief Waribo Eneyok and Ors (1953) 14 W.A.C.A. 354.
It is trite that facts not disputed are taken as established and therefore need no further proof. The Court can legitimately act on such undisputed fact: ODULAJA v. HADDAD (1973) 11 SC 35; HON. KEHINDE ODEBUNMI & ANOR v. OJO OYETUNDE OLADIMEJI & ORS (2012) LPELR – 15419 (CA).

Furthermore, the claim was for special damages and in such cases, the apex Court held that such a claim will not succeed simply because there was admission. See NNPC V CLIFCO NIG LTD (2011) LPELR- 2022(SC) which held thus:
“Evidence ought to be led before an award for special

damages is granted. To succeed in a claim for special damages, it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court.” Per RHODES-VIVOUR, J.S.C.
The issue is therefore settled because special damages are in a class of its own and must be strictly proved and thus cannot be granted on admission. In any case, there was no admission here and the trial Court was therefore in error. The award in special damages made on the alleged admission by DW4 (pages 534-535 of the record of appeal) that the Appellants breached its duty of care to the Respondent is perverse and is hereby set aside.

The essential elements of negligence identified earlier in this Judgment and as settled inUTB V OZOEMENA (SUPRA) were not

proved. The Respondent as occupant in the premises of the Appellants for a consideration is owed a duty of care. The question that arises is whether there was a breach of the duty and whether the Respondent suffered damages arising from the breach and this is where the Respondent’s case failed. It is also obvious that evidence before the trial Court was not properly evaluated and thus error in arriving at the final decision where awards were made outside pleadings and without foundation.
I hereby set aside the award and find for the Appellants under issues 1, 2 and 3.

Issues four and five challenges reliance on Exhibit 11 to arrive at the finding that the flooding made the Respondent to sustain physical injury which affected his health and property. Issue five challenges the award of N100,000,000.00 (One Hundred Million Naira) general damages in favour of the Respondent. It is trite that general damages is at the discretion of the Court but it must be based on some parameters, some of which is evidence and not whimsically, see HELIOS TOWERS (NIG) LTD V MUNDILI INVESTMENT LTD (2004) LPELR-24608(CA) where my learned brother ABIRU, JCA said as follows:

“Now, general damages are damages that the law itself implies or presumes to have accrued from a wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such that the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case – GKF Investments Ltd Vs Nigeria Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344, Tanko vs Mai-Waka (2010) 1 NWLR (Pt.1176) 468, Kopek Construction Ltd vs Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.”
He went to say:
“An award of general damages cannot be made arbitrarily. It calls for some measure of quantification and a

careful exercise of judicial discretion and it is not an exercise of judicial discretion if the basis for the award is not demonstrated. An assessment of damages must at all stages have reference to the evidence and the subject matter of the action.”
The apex Court in the case of GAMBO V IKECHUKWU (2011) 17 NWLR (Pt. 1277) 561 heavily relied on by the Court in HELIOS TOWERS case held thus:
“it is quite plain that the relief of general damages not only requires proof of the alleged acts in breach of the contract between the parties, credible evidence is also required to prove the extent of general damages claimed by the plaintiff… It is not enough for a Court to simply award damages without giving reasons as to how it arrived at what amounted to reasonable damages.”

The Respondent in his Amended Statement of claim also sought general damages in the sum of N500,000,000.00 (Five Hundred Million naira) only for loss of goodwill, earnings, loss of profits, use of properties, physical injury and continued suffering. The claim for physical injury (Exhibit 10 and 11) is duplication because the Court below considered it under special damages and made

an award in respect of the same injury. The Respondent made several allegations of how his business was disrupted. The arrangement between the parties is that of a licence, the Appellants were the licensor and the Respondent was the licensee. The Appellants denied the allegations and both sides presented evidence. On the medical report tendered (Exhibit 11), it was considered earlier where I found that it cannot be relied on because it was not tendered by the maker. The same Exhibit is what the trial Court relied on again to award general damages in the sum of N100,000,000.00.

I agree with the Appellants’ counsel when he observed that the trial Court contrary to settled procedure of evaluating evidence before award of damages, failed to do a dispassionate evaluation of the evidence before the award. Consequently, there is no foundation for the award of general damages. In fact, loss of profit cannot come under general damages because it must specifically pleaded and strictly proved. Particularization is required in terms of customer base, nature of business, his annual returns and profit margin prior to the flooding must have been established by credible

evidence, it was not so done. Loss of profit cannot be estimated. It is one of the claims that come under special damages. Furthermore, the evidence before the trial Court on the physical injury gives room for speculation. Exhibits 10 and 11 were made by the same Dr. Gambo and yet bear different signatures, a Court is allowed to examine signature and arrive at a finding. SeeMOBIL PRODUCING (NIG) UNLTD V. HOPE (2016) LPELR -41191(CA) where the Court held as:
“By the authoritative decision of the Apex Court in ADENLE v. OLUDE (supra) vis-a-vis the provisions of Section 101 of the Evidence Act (supra), the Court below and indeed any trial Court for that matter, has a duty to take the initiative of making the necessary comparison of signatures in documentary exhibits before it before coming to a reasonable conclusion in the matter. See ADENLE v. OLUDE (supra) @ 432 Paragraphs A-E; TEICH v. NORTHERN INT-MARKET CO. LTD. (1987) 4 NWLR (Pt. 65) 441; R v. SMITH 3 C.A.R. 87; R. v RICKARD 13 C.A.R. 140; R. v APPEA (1951) 13 WACA 143; WILCOX v. THE QUEEN (1961) 2 SCNLR 296.”
Per SAULAWA, J.C.A ( Pp. 29-30, paras. F-C).

Having so examined the two

Exhibits, no weight can be placed on them because they were not tendered by the maker who must have been available for cross-examination. They are therefore worthless and must be expunged. Another impeaching feature is the fact that being a medical report with clear difference in the signatures of the same doctor, he should have been called to testify because even the terminologies used would require explanation and must be linked to the nature of the offending act for which damages is sought. Flowing from above, I find for the Appellants under issues 4 and 5.

The Appellants on issue 6 challenges the award of 3.5 Million SPG (Starwood Preferred Guest) points in favour of the Respondent. The Respondent claimed that he earned 3.5 Million SPG points as at August 2011 and was issued a loyalty card which he can use to access facilities with rewards accruing to him. He contended that he was only given the card in 2011 and by then it had expired. His claim was founded on an electronic mail which was not tendered and that simply makes it mere allegation and hearsay. Hearsay evidence is not allowed in law, see EFFIONG V. STATE (2016) LPELR-42052(CA) wherein the

Court held thus:
“The position of the law is that any evidence which is sought to be admitted must be of sufficient relevance. R. V. Blastland (1986) A. C 41, 81 CR APP. Rep 266 HL Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. DPP V. Kilbourne (1973) AC 729 at 756, 57 CR APP. Rev 381 at 417… This is because of common law and under the Nigerian Evidence Act, it is a fundamental rule of evidence that hearsay is inadmissible… In the instant case, the Learned Counsel for the Appellant was right when he submitted that Exhibits 1 and 2 are species of documentary hearsay evidence and therefore not admissible in evidence to prove any truth therein as the Learned trial Judge did. …The content of Exhibit related to the truth of the assertions and not merely the fact that it was made when in fact, neither the maker nor the tenderer of Exhibit ‘B’ was capable of giving direct oral evidence of its contents. A Court of law cannot attach probative value to such an Exhibit”. Also in Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) 24 at 47. It was held that the proper person to tender a document is the maker of

such document. Where the maker of a document is not called to testify before a Court and subjected to cross-examination as to the sources of information, the Court cannot attach any probative value to such document.”
Per OWOADE, J.C.A ( Pp. 16-21, paras. B-D).

Furthermore, the Appellants denied liability of Starwood Preferred Guest Card and explained how the system operates which they pleaded in the Amended statement of defence and it was not rebutted. The burden of proof was on the Respondent. The Appellants by evidence explained that the system operates like an ATM by which a secret pin code is used to enjoy the reward and only a member of the Starwood Preferred Guest can utilize the card. The burden was on the Respondent to establish how the pin code security was breached and the complaint of stolen units is a criminal allegation which the law demands that it must be proved beyond reasonable doubt. See UKPONG V. STATE (2019) LPELR -46427(SC) wherein it was held that:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt… In the realm of criminal justice, the said

expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt 868) 166, 179. Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. The cases on this point are many. Only a handful will be cited here; Okere v. State (supra) 415 – 416; Sabi v State [2011] 14 NWLR (pt.1268) 421; lwunze v Federal Republic of Nigeria [2013] 1 NWLR (pt.1324) 119; Njoku v State [2013] 2 NWLR (pt.1339) 548; Osuagwu v State [2013] 5 NWLR (pt.1347) 360; Ajayi v State [2013] 9 NWLR (pt. 1360) 589.”
Per NWEZE, J.S.C ( Pp. 20-21, paras. A-D).

The question as to how the trial Court arrived at 3.5 Million points awarded to the Respondent when no foundation and evidence was presented to

justify same is surprising. The Court below erred when it concluded there was admission by virtue of Exhibit 6 which was denied in the pleadings. For admission in the pleadings to be relied upon by the Court to make a finding it must be unequivocal, not speculative or based on conjecture. The adverse party admitting must leave the Court in no doubt as to the fact admitted. It is even not all admissions that are admitted as conclusive proof of facts because the facts must be evaluated by the Court.
Admission must be clear and evident from a holistic reading of the entire pleadings that the party intended to admit those facts. Admission cannot be inferred from a part of paragraph of the pleadings, in the law of pleadings, admission must be unequivocal, see BUHARI V INEC & ORS (2008) LPELR-814(SC). There was no such unequivocal admission on the SPG points as found by the trial Judge.

As contended by the Appellants, Exhibit 1, 2 and 3 were electronically generated and the precondition to their admissibility pursuant to Section 84 of the Evidence Act, 2011 was not complied with therefore, no weight can be attached to them, see ALAO V AKANO & ORS

(2005) LPELR-409(SC) which held:
“Where the law declares a document inadmissible, the document cannot be admitted in evidence even where there was no objection or even where the parties consent to its admission. See Etim v. Ekpe (1983) 1 SCNLR 120.”
Such inadmissible documents cannot form the basis of a competent finding that can inure to a party any award in damages, see NWAOGU V ATUMA & ORS (2013) LPELR-20667(SC). The trial Court erred when it relied on these inadmissible documents to make various awards in favour of the Respondent, so the claim of 3.5 Million SPG units awarded on inadmissible evidence and the findings are perverse and must be set aside. To further buttress the point, the Respondent failed to tender his statement of account of the SPG reward system which is controlled by a different entity and who was not a party to the suit. The trial Judge erroneously and without determining who had the responsibility over SPG reward system ascribed blame on the Appellants.
Flowing from above, I find for the Appellants under issue 6.

Issue seven questions whether the trial Judge was right to have dismissed relief one of the

counterclaim of the Appellants. The Appellants by relief one of the counter claim sought as follows:
“(a) The sum of N11,775,135.26 (Eleven Million, Seven Hundred and Seventy-five Thousand, One Hundred and Thirty-five Naira, Twenty-six Kobo) which represents the unpaid bills together value added tax and service charge outstanding as at the 8th day of May, 2015 in respect of the Plaintiff’s occupation of Rooms 923 and 926.”

The Appellants relied on Exhibit D6, minutes of meeting held on the 2nd March, 2015 to resolve outstanding issues between the parties and which was signed by representatives of the Appellants while the Respondent refused to sign. This was pleaded in paragraph 14 of the Amended Statement of Defence and Counterclaim and by paragraph 22 of the witness statement on Oath of Tunji Adeleye (DW1), he made it clear that the Respondent refused to sign the minutes of meeting called to resolve outstanding issues between the parties. The trial Court at page 559-560 made the following findings on Exhibit D as follows:
“Exhibit D6 was tendered to proof(sic) this arm of claim. A cursory look at the said exhibit would reveal that it

was signed by the general manager of the 2nd defendant/Counter Claimant and one Mr. Robert Itawa. The column of the Plaintiff’s attention was never drawn to the document, moreso that no evidence was led to show that the Plaintiff refused to sign his column in the said document, i.e. Exhibit D6… there is clearly no agreement with respect to the said Exhibit D6 between the 2nd defendant/counter Claimant and the Plaintiff.”

There was adequate pleading on the said Exhibit D6 and evidence in support by the Appellants’ witness who also in clear terms told the Court that the Respondent refused to sign the minutes of meeting. The trial Judge was therefore in grave error when he said that there was no evidence before the Court that the Respondent refused to sign. That finding is perverse. The said evidence was not debunked or discredited. In fact, the averments were not denied as required in Respondent’s Reply to Statement of Defence and Counterclaim, it is settled that when evidence of a party to a suit is not denied or challenged by the opposite party which had the opportunity to do so, the Court is entitled to accept and use such evidence in arriving at a

finding, see KOPEK CONSTRUCTION LTD V. EKISOLA (2010) LPELR-1703(SC) where the apex Court held as follows:
“I think the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. See: G. S. Pascutto V. Adecentro Nig. Ltd. [1997] 12 SCNJ 1; Alfotrin Ltd. V. The Attorney General of the Federation and Anor. [1996] 12 SCNJ 236; Otuedon & Anor. V. Olughor & Ors, [1997] 7 SCNJ 411; Artra Industries Nig. Ltd. v. The Nigerian Bank for Commerce And Industry [1938] 3 SCNJ 97.”
Per MUHAMMAD, J.S.C ( Pp. 66-67, paras. D-A).

The trial Judge on the basis of the Respondent’s refusal to sign the minutes of meeting discountenanced Exhibit D6 wherein the Respondent accepted liability upon which relief one was based. The learned trial Judge fabricated an excuse for the Respondent when he said his attention was not drawn to the said Exhibit D6. The Respondent did not traverse the pleadings on the said Exhibit, did not deny the evidence that he refused to sign the document but kept mute. On what basis therefore did the

trial Judge generate the excuse that his attention was not drawn to it when he was at the meeting and rather, he refused to sign the document. The situation was explained by evidence and the trial Judge had no discretion but to do the needful in giving value to the document because the reason for lack of Respondent’s signature was explained, see ABEJE & ANOR V APEKE (2013) LPELR-20675(CA) wherein the Court held as follows:
“It has to be said aid though that it is not everything in writing that goes under the rubric of ‘document’ that will lose its evidential worth simply because it is not signed. For example, where the parties do nor deny the existence of a contract of affreightment, the fact that they did not sign it cannot be a ground that they are bound by it, barring statutory provisions. See AWOLAJA V SEATRADE GBV (2002) 4 NWLR Pt. 758 520 at 532.”
The apex Court also had cause to say a word in the case ASHAKACEM PLC V ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC) wherein the apex Court held thus:
“The appellant is urging this Court to discountenance Exhibit L because it was unsigned but the appellant did not take up

the findings of the Lower Court which stated that this case is of peculiar circumstance that cannot be ignored. The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible. This unusual but allowable exception to the general rule was well explained in this Court in the case of Awolaja & Ors v Seatrade G.B.V. (2002) LPELR – 651 per Ayoola. JSC as follows:- “A signed document though valuable as putting it beyond peradventure what terms the parties have agreed to is not essential to the existence of a contract of affreightment. Where the immediate parties to the agreement do not deny their agreement or the existence of the contract of affreightment and there is no doubt about their intention that they should be bound, barring statutory provision to the contrary, (and none has been cited by the defendants) the existence of the contract cannot

be impugned on the ground that the document embodying the terms they have agreed to was unsigned, unless the parties have made such a condition of their being bound.” (Italics supplied). Per PETER-ODILI, J.S.C
With the explanation which was not contested, the trial Court erred in discountenancing Exhibit D6. That finding is set aside and the said Exhibit is restored back into evidence for evaluation. This issue is also resolved in favour of the Appellants.

The Appellants also challenged the findings made by the trial Court relying on Exhibit 13 to declare that the Respondent is entitled to continuous occupation of suites in the 2nd Appellant perpetually and on unreviewable rates. The portion the Court below relied on states:
“TO Whom It may Concern
This is to confirm the repairs made by our potential guest Alhaji Moussa Abdoulaye of the room in his possession, room 923 of Sheraton Hotels and Towers Abuja. I also confirm the verbal agreement made with him that after repairing the room (923), he is authorized to use the room as long as he is occupying the room at the same price irrespective of any addition that might be made by any

authority or the General manager of this hotel.”
The Appellants’ reliefs 2 and 3 of the counterclaim states as follows:
2. The sum of N1,800,000,000.00 (One Million Eight Hundred Thousand naira) which represents the unpaid amount in respect of the Plaintiff’s occupation of Room 168 which he used as his office.
3. The sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) which represents the Plaintiff’s unpaid bill in respect of the new office which the Plaintiff presently occupies known as Cabana 11.”

Exhibit 13 in its content refers to Room 923 which is covered under relief one of the counterclaim. Rooms 168 and Cabana were not mentioned in the said Exhibit 13. The law is trite that in the interpretation of documents, the Court should not read into the document what was not mentioned. Also, in interpreting document where there are listed or mentioned items, the rule is the express mention of a thing is to the exclusion of another, the Latin principle is known as expresso unius personae est exclusion alterius or expressum facit cessare tacitum which means that the expression of one person or a thing implies the exclusion of

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other persons or things of the same class but which are not mentioned. See BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812(SC) wherein it was held:
“The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See Ogbunyiya v. Okudo (1979) 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139.”
Per UWAIFO, J.S.C ( P. 20, paras. B-E).
The fact that room 923 was specifically mentioned, it also excluded Room 168 and Cabana. The trial Judge is not allowed to read into a document what is not in the document that, will be perversity and has occasioned a miscarriage of Justice because by implication reliefs 2 and 3 of the counter claim were not considered. The trial Judge erroneously read room 168 and Cabana into Exhibit 13 which in specific reference to

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room 923. See ANAELO & ORS V MADUAGWUNA & ANOR (2018) LPELR- 44884 (CA) which held as follows:
“It is settled law that in the interpretation of a document, no part of the document should be read in isolation. The entire document must be read as a whole. No additional words or clauses should be imported into the document, the Court must confine itself within the four walls of the document.”
see also the following cases: SAMBO & ANOR V. ABUBAKAR (1995) LPELR-21623(CA); I.I. ERIGBUEM & CO. LTD V. UBA PLC (2018) LPELR-44770(CA) and UNILIFE DEVELOPMENT CO. LTD V. ADESHIGBIN & ORS (2001) LPELR-3382(SC).

Reliefs 2 and 3 are in respect of unpaid bills for the occupation of room 168 and Cabana which is different from the claim in relief one. The pleadings in respect of these two rooms are in paragraph 14 of the counterclaim and for which the Respondent did not traverse and did not deny. The Respondent did not even mention it in his Reply to Statement of Defence and counterclaim, the Respondent was mute on the claim and the findings of the trial Judge that though the Respondent admitted owing some rents, the Appellants failed to

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specifically name the outstanding total figure. The trial Court did not avert its mind to the reliefs and statement on oath where evidence in support of the pleadings was presented. In any case, in the absence of a positive traverse and evidence from the Respondent challenging the claim, can it be said that the claim was not established? There is admission by the Respondent that he owes the Appellants rents, admitted under cross-examination at page 455. It is trite that facts admitted requires no proof, see MBA V. MBA (2018) LPELR- 44295(SC) which held thus:
“From the records, in the evidence adduced by both parties, both orally and documentarily, certain facts were established, either for having been admitted or not in dispute at all by the parties. These facts, no doubt, require no further proof. See Section 75 of the Evidence Act, Din vs. African Newspapers (1990) 3 NWLR (Pt.139) 3921 Daniel vs. Iroeri (1985) 1 NWLR (Pt.3) 541; Obikoya vs Wema Bank Ltd (1989) 1 NWLR (Pt.96) 159. It is trite law and now fully settled that whatever fact is admitted needs no further proof. Such fact is deemed established. See; Mozie & Ors vs. Mbamalu & Ors (2006)

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12 SCM (Pt. 1) 306 at 317 Olubode vs. Oyesina (1977) 5 SC 79; Balogun vs Labiran (1988) 3 NWLR (Pt.80) 66. In other words, any admitted facts, or fact not disputed or not specifically denied, need no further proof and will be deemed established. See; Olale Vs. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62 at 1021 Ehinlanwo vs Olusola & Anor (2008) 10 SCM 28 (2008) 16 NWLR (Pt.1113) 357 (2008) 6-7 SC (Pt.11) 123.” Per ARIWOOLA, J.S.C.

It is not in doubt that there being no challenge, the facts and evidence on the claim represented in reliefs 2 and 3 were established and ought to have been granted. I hereby grant the said reliefs and award to the Appellants the sums claimed in reliefs 2 and 3. They were established. The finding of the trial Court is perverse and is hereby set aside.

Issue 10 revolves around Exhibit D which was discountenanced by the trial Judge on the ground that it was inadequate notice to the Respondent. The same Court below found that the Respondent was occupier/guest and licensee in the premises of the 2nd Defendant/Appellant. The question is who is a licensee? Is a licensee synonymous to a tenant? For a tenancy relationship to exist the

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terms must be definite and certain. Was there a tenancy agreement between the parties in this appeal? The Supreme Court pronounced on how a statutory tenancy is determined in the case ofA. P. LTD V OWODUNNI (1991) LPELR- 2139(SC). There was none and a licensee is certainly not a tenant and applicable principles differ. Obviously, a licensee occupies the premises at the pleasure of the owner and therefore the notice required is a reasonable time as held in the case of OYEKOYA V G. B. OLLIVANT (NIG) LTD (1969) LPELR-25501(SC) where the Court held thus:
“… a licensee is entitled to a reasonable time before the licence is determined and if it is determined earlier the licence is revoked but if the licensor ejects the licensee prior to the expiration of a reasonable time then he must pay damages. See Minister of Health v. Bellotti [1944] 1 All E.R. 238 where Goddard L.J. (as he then was) said at page 245 – “On the other point, it seems to me the position is this: If a licensor determines the licence, he is bound to give a reasonable time within which the determination is to take effect, so that the licensee can collect himself, his property or whatever it

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may be, from the premises in respect of which the licence has been withdrawn. He is bound to give a reasonable time, and if he does not and takes proceedings before the reasonable time has elapsed, he loses his action. But although he may not give a reasonable time, it seems to me that that does not put an end to the withdrawal of the licence. The licence has been withdrawn and the withdrawal becomes effective when a reasonable time has expired. The fact that he may have limited a time which, as in this case, was unreasonable, and in this case wholly unreasonable, does not justify the licensee in sitting down and doing nothing. He should have begun to make arrangements, or attempted to make arrangements to remove himself, and by the time the proceedings had started on Sept. 22, he had had ample time.”
Per LEWIS, J.S.C ( Pp. 9-11, paras. F-A)
Having found that the relationship between the parties was a licensee relationship, statutory notices are not required and should have the basis of the findings. The trial Judge erred in his findings.
From the above quoted judgment of the apex Court, the licensee is only entitled to a reasonable time and

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was he given such reasonable time by the Appellants in this case. The writ is dated and filed on the 16th day of March, 2015 and the notice was issued on 27th July, 2015.
Reasonable time is not definite and would depend on the circumstances of each case. In this particular situation, the Appellants gave notice to the Respondent to quit during the pendency of the suit. It would be reasonable and fair that the notice should have been given before the filing of the suit. Be that as it may, the relationship having broken down, the period of … can serve as reasonable period of notice for him to quit. Having found for the Appellant’s the Respondent should now quit the Hotel as he not being a tenant. Looking at the question in another way, the trial Court actually made a new case for the parties and Courts have been admonished to desist from making a case for a party or parties, see NBCI V. INTEGRATED GAS (NIG) LTD & ANOR (2005) LPELR- 2016(SC) where it was held thus:
“A Court is not competent to make a case for the parties different from the case they made for themselves. This principle was recently restated by this Court in the case of

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Spasco Vehicle and Plant Hire Co. v. Alraine (Nig.) Ltd. (1995) 8 NWLR (Pt. 416) 655 at 669 where Iguh, J.S.C., observed -lt is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him: see Commissioner for Works Benue State & Anor. v. Devcon Development Consultants Ltd. & Anor. (1988) 3 NWLR (Pt.83) 407; Ochonma v. Ashiri Unosi (1965) NMLR 321 at 323; Nigerian Housing Dev. Society Ltd. & Anor. v. Yaya Mumuni (1977) 2 SC 57; Adeniji & Ors. v. Adeniji & Ors. (1972) 1 All NLR (Pt. 1) 298; A.C.B. Ltd. v. A.-G., Northern Nigeria (1967) NMLR 231. This principle of law is, without doubt, in accordance with common sense as to permit trial Courts to wander out of issues raised by the parties in their pleadings and to found their judgment on such issues would not only take parties by surprise and make nonsense of pleadings, it might

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well result in the denial to one or the other of the parties of the right to fair hearing pursuant to the audi alteram partem rule as enshrined in the 1979 Constitution of Nigeria (see Metalimpex v. A.G. Leventis & co. Ltd. (1976) 2 SC 91; Kalio v. Kalio (1977) 2 SC 15; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 242; Shell B.P Ltd. v. Abedi (1974) 1 All NLR (Pt. 1) 13; Alhaji Ogunlowo v. Prince Ogundere (1993) 7 NWLR (Pt.307) 610 at 624.”
Per EDOZIE, J.S.C ( Pp. 21-22, paras. E-F).

The Court below erred by anchoring its findings on the claim which is founded on a different type of claim and which should not in any way interfere with the reliefs sought by the Appellants in seeking to eject a licensee from its premises. The claim of the Respondent was based in Tort and not occupation which he has not been paying.

The Respondent should quit the premises he occupied without payment. Relief 5 was made out and should have been granted.

Issue 11 complaint about the award of cost in the sum of N100,000.00 (One Hundred Thousand Naira) only in favour of the Respondent. Cost generally follow events and is within the discretion of the

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Court, a discretion that must be judicially and judiciously exercised which requires that it is determined based on materials placed before the Court, see NNPC V CLIFCO NIG LTD (2011) LPELR- 2022(SC) where the apex Court said:
“The award of cost is entirely at the discretion of the Court, cost follow the event in litigation. It follows that a successful party is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In making an award of cost, the Court must act judiciously and judicially. That is to say with correct and convincing reasons.”
Having found against the Respondent the award of cost is now without convincing reasons and must be set aside. I find for the Appellants under issue 11. If the case for the Appellants failed on appeal, the award would remain in place but where the appeal is meritorious, the award of cost cannot remain because there would be no foundation upon which it can stand.

Consequently, having found in favour of the Appellants in this appeal, the appeal is meritorious and succeeds. The Judgment of the trial Court delivered on the 5th day of July, 2018 is hereby set aside.

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The counter claim of the Appellants also succeeds in the following terms:
1. The sum of N11,775,135.26 (Eleven Million, Seven Hundred and Seventy Five Thousand, One Hundred and Thirty Five Naira, Twenty Six Kobo) which represents the unpaid bills together value added tax and service charge outstanding as at the 8th day of May, 2015 in respect of the Plaintiff’s occupation of Room 923 and 926.
2. The sum of N1,800,000.00 (One Million Eight Hundred Thousand Naira) which represents the unpaid amount in respect of the Plaintiff’s occupation of Room 168 which he used as his office.
3. The sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) which represents the Plaintiff’s unpaid bill in respect of the new office which the Plaintiff presently occupies known as Cabana 11.
4. The sum of N21,840 (Twenty One Thousand, Eight Hundred And Forty Naira) being the daily bill inclusive of 5% value added tax and 10% service charge in respect of the Plaintiff’s occupation of the Room 926 from the 8th day of May, 2015 till the date of judgment in this suit.
5. An order ejecting the Plaintiff out of the premises of the 2nd Defendant.

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In view of the above, the main claim fails and is hereby dismissed. The Counterclaim succeeds and is hereby granted.
No order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed the opportunity of reading the draft judgment justice delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I am in agreement with her reasoning and conclusion thereat that this appeal is meritorious. I also do allow the appeal and I abide by all the consequential orders as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusion and orders therein.

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Appearances:

AUDU AMGA, ESQ., with him, FESTUS JUMBO, ESQ, ADEWALE ADEGBOYEGA, ESQ, REUBEN KINYA, ESQ. and ALEUISI ABASS, ESQ. For Appellant(s)

A. MOHAMMED, ESQ., with him, MICHAEL LEYINMI, ESQ., OLUSOLA EDBEYINKA, ESQ., SEIDU ALFA, ESQ. and OLAMIKAN JOSEPH, ESQ. For Respondent(s)