JOC-DONA INVESTMENT LTD v. ABUJA MUNICIPAL AREA COUNCIL (2022)

JOC-DONA INVESTMENT LTD v. ABUJA MUNICIPAL AREA COUNCIL

(2022)LCN/16959(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 19, 2022

CA/ABJ/524/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

JOC-DONA INVESTMENT LIMITED APPELANT(S)

And

ABUJA MUNICIPAL AREA COUNCIL RESPONDENT(S)

RATIO

WHETHER OR NOT A DECLARATORY RELIEF IS GRANTED AT THE DISCRETION OF THE COURT

Now, I have painstakingly gone through the processes filed by the Appellant at the trial Court, especially the Writ of Summons, the Statement of Claim, the Witness Statement on Oath of Mr. Haruna Unekwe (PW1) and the exhibits tendered and admitted in evidence; and it is correct, as submitted by the Appellant’s Counsel that the Respondent, both in this Court and the trial Court did not file any process to contest the suit or claims of the Appellant. However, on a close perusal, the Appellant’s claims are declaratory reliefs being sought against the Respondent. Thus, the grant of a declaratory relief, it must be noted, is discretionary. It will only be granted when the Court is of the opinion that the party seeking it, is, when all the facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. See the cases of RASHIDI ADEWOLU LADOJA V. INEC (2007) LPELR-1738 (SC); ODOFIN V. AYOOLA (1984)11 SC 72.
In the case of MAJA V. SAMOURIS (2002) LPELR-1824, the Supreme Court held as follows:
“This Court further explained that the requirement for oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and that its success depends entirely on the strength of the Plaintiff’s own case and not on defence.” PER SENCHI, J.C.A.

WHETHER OR NOT SPECIAL DAMAGES MUST BE PROVED

It is trite law that where the Claimant specifically alleges that he suffered special damages, he must, as a matter of fact, adduce credible and concrete evidence to prove the special damages in no uncertain terms. The apex Court has laid down the condition precedent in proof of special damages before the Claimant would be entitled to the award. In the case of ARISONS TRADING & ENGINEERING CO. LTD V. THE MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR-554 as follows:
“On the remaining equipment and machinery, it is the finding of the Court below that there was no proof to entitle the Appellant to the special damages claimed. The Court below observed: “The nature of the Appellant’s claim as special damages which must, as a rule, be proved strictly makes the submissions of the learned Counsel on this point to be compelling. Particularly apposite on the exposition of the principles on special damages are MESSRS DUMEZ (NIG) LTD V. P.N. OGBOLI (1972)1 ALL NLR (PT. 1)241, 249-250, ODULAJA V. HADDAD (1973) 11 SC 357 AT 362; WEST AFRICAN EXAMINATION COUNCIL V. KOROYE (1977)2 SC 45 AT 54; BASSIL V. FAJEBE (1990)6 NWLR (PT. 155) 172, 179-180; AJIKAWO V. ANSALDO (NIG) LTD (1991)2 NWLR (PT. 173) 359, 373; AKU NMECHA TRANSPORT SERVICE LTD V. ATOLOYE (1993)6 NWLR (PT. 293) 233, 257; GURARA SECURITIES & FINANCES LTD V. V.I.T.C. LTD (1999)2 NWLR (PT. 589) 29, 48-49 and ACME BUILDERS LTD V. KADUNA STATE WATER BOARD (1999)2 NWLR (PT. 590) 288, 305-306 and 309. On the premise of the principles regulating the award of special damages as expounded by those authorities, the reproduction by rote of the list of machinery by PW1 and PW4 bereft of proper identification of each equipment falls far short of what is required to prove special damages. It is trite that special damages must be proved positively from facts which satisfy the Court of their truth but not by repeating on oath undigested averments in the Statement of Claim that are lubricated by various guesswork to lend them semblance of factual authenticity. See NTITI V. AFATSAO (1970)2 ALR COMM. 148, 150-151. The evidence by the Appellant has failed to establish the Company’s possession or ownership of the other five equipment. I am in complete agreement with the Court below. Not only must special damages be specifically pleaded, they must be specifically proved by the Plaintiff. See OSUJI V. ISIOCHA (1989)3 NWLR (PT. III) 623, OTARU & SONS LTD V IDRIS (1999)6 NWLR (PT. 606)330; ATTORNEY GENERAL OF OYO STATE V. FAIRLAKES HOTEL NO. 2 (SUPRA). They are those pecuniary losses actually suffered up to the date of the trial, such as loss of earnings. The requirement of the law in relation to such damages is that it must be pleaded and proved. It is not a matter of hypothetical exercise nor can it be left to conjecture. If the Appellant was to realize anything from the special damages claimed, it should have gone further to lead evidence on those who made inquiries to hire each item of the equipment/machinery. It should have also led evidence in proof of loss of interest from the capital which led lay idle, depreciation and maintenance.” PER SENCHI, J.C.A.

THE DEFINITION OF PERVERSE FINDING OF FACTS

The Apex Court and indeed this Court have in quite a number of decisions held that “a perverse finding is a finding of facts which is merely speculative and not based on the pleadings and evidence before the Court or where the Court has drawn wrong inference from the evidence before it, thereby occasioning a miscarriage of justice.” See IWUOHA V. NIPOST LTD (2003)1 NWLR (PT. 822) 308; MMAMMAN V. FRN (2013) VOL. 2-3 MJSC (PT. 11) 168; OLANIYAN & ORS V. FATOKI (2013) VOL 7 MJSC (PT. 11) 1 and FIXITY INVESTMENT LTD V. ALHAJI AMINU MOHAMMED GUMEL (2016) LPELR-41549 (CA). PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/3145/13 delivered on the 30th day of September, 2014 by O. A. MUSA J.

The Appellant, as Plaintiff before the lower Court, commenced this action via a Writ of Summons and Statement of Claim, wherein it claimed against the Defendant/Respondent as follows:
(1) A Declaration that the Defendant has no power or right whatsoever to mount roadblocks or obstructions on the motorways within the FCT Abuja or elsewhere, for the purpose of enforcing collection of motor vehicle road taxes, levies or other charges from the Plaintiff or any other person/motorists whatsoever.
(2) A Declaration that it is unlawful, illegal and unconstitutional for the Defendant to compel the Plaintiff to purchase from the Defendant Council the Motor Vehicle mobile advert, Mobile Sanitation, TV/Radio and Loading/Offloading permits, levies or taxes, when the very same permit, levy or tax has already been paid for by the Plaintiff in another Local Government Area within the Federal Republic of Nigeria.
(3) A Declaration that the conduct of the Defendant’s officers in obstructing, detaining and forcefully removing the Vehicle Registration Plate numbers of the Plaintiff’s vehicle or otherwise vandalizing the said vehicle on the 26th day of February, 2013, in a bid to compel the Plaintiff to purchase from the Defendant the Motor Vehicle mobile advert, Mobile Sanitation, TV/Radio and Loading/Offloading permits, levies or taxes, when the very same permit, levy or tax has already been paid for by the Plaintiff in another Local Government Area within the Federal Republic of Nigeria, is unlawful, illegal and amounts to a brazen act of trespass to the property of the Plaintiff.
(4) An Order of Perpetual Injunction restraining the Defendant whether by itself, its agents, servants, officers or any person acting through or under it or under its instruction from harassing, obstructing the free movement on the highway, forcefully removing the plate numbers or otherwise vandalizing the vehicles of the Plaintiff on the road within the FCT Abuja for the purpose of compelling the Plaintiff to purchase from defendant the Motor Vehicle mobile advert, Mobile Sanitation, TV/Radio and Loading/Offloading permits, levies or taxes, when the very same permit, levy or tax has already been paid for by the Plaintiff in another Local Government Area within the Federal Republic of Nigeria.
(5) An Order compelling the Defendant to return to the Plaintiff, the Vehicle Registration Plate numbers Nasarawa XB 181 NSW, ripped off, seized and taken away from the Plaintiff’s vehicle by the Defendant’s officers/agents on the 26th day of February, 2013.
(6) An Order compelling the Defendant to pay the sum of N10,000.00 (Ten Thousand Naira) per day, being the daily loss of profit from the use of the Plaintiff’s vehicle as a result of the removal of the vehicle registration plate numbers by the Defendant’s officers/agents thereby rendering the said vehicle immobile and out of operation, from the 26th day of February, 2013 till the date of return of the said plate numbers to the Plaintiff.
(7) General Damages in the sum of N50,000,000.00 (Fifty Million Naira) for the abrupt disruption of business, loss of unquantifiable business patronage and goodwill, suffered by the Plaintiff as a result of the unlawful, illegal and injurious acts of the Defendant.
(8) The sum of N2,000,000.00 (Two Million Naira) being cost incurred by the Plaintiff by way of Solicitor’s fees to prosecute this claim.
(9) Interest on the above sums at the rate of 10% per annum, from the date of judgment until the final liquidation of the judgment debt by the Defendants.
(See pages 8-10 of the Record of Appeal).

The Respondent (Defendant) was served with the Appellant’s processes at the trial Court. However, the Respondent failed, refused or neglected to enter any appearance or file a defence. Thus, on 10/03/2014, the Appellant commenced trial by calling a sole witness, Haruna Unekwe, who testified as PW1. PW1 adopted his Witness Statement on Oath deposed to on 13/05/2013 as his testimony in the suit. Documents were tendered and admitted in evidence and marked as Exhibits A1-A17 on behalf of the Appellants. At the conclusion of PW1’s testimony, the trial Court adjourned the matter to 30/04/2014 for cross-examination and defence by the Respondent. (See page 77 of the record of Appeal). On 30/04/2014, the Respondent failed to appear in Court and the trial Court subsequently foreclosed the right of the Respondent to cross-examine PW1 and the right to open or present any defence in the suit. (See page 78 of the Record of Appeal). Thus, the trial Court ordered for Final Written Address to be filed.
On 16/06/2014, the Appellant’s Counsel adopted his Final Written Address.

The brief facts of the case, as gleaned from the deposition in support of the Appellant’s case before the lower Court are that on the 26th day of February, 2013, while a vehicle of the Appellant with Registration No. Nasarawa XB 181 NSW was being driven by the Appellant’s Salesman (PW1), officers of the Respondent, who had mounted a roadblock, abruptly stopped the said vehicle and demanded for evidence of payment of Local Government Council’s vehicle taxes, levies and other duties. The Appellant’s Salesman informed the Respondent’s officers that payments had already been made to Keana Local Government Area of Nasarawa State for the Appellant’s vehicle, in respect of the same vehicle taxes, levies and other duties; and he showed Exhibits A1-A14 to the Respondent’s officers as evidence of the said payments. However, officers of the Respondent refused to recognize Exhibits A1-14 and proceeded to vandalize the Appellant’s vehicle and forcefully ripped off its registration number plates, stating that the Appellant was guilty of revenue diversion, as it ought to have made payments to the Abuja Municipal Area Council where the vehicle was found plying the road, and not to Keana Local Government Area. The Respondent held onto the plate numbers of the Appellant’s vehicle, notwithstanding all efforts by the Plaintiff and its Counsel to retrieve same, thus rendering the vehicle inoperable by the Appellant for the purpose of its business.

In delivering his judgment, the Lower Court held inter alia at page 117 of the Record of Appeal thus:
“…although the Plaintiff pleaded this special damages with its particulars in the Statement of Claim at paragraph 22(a) and (b), but at the trial, the Plaintiff did not prove same by leading evidence to show to the Court its entitlement to the damages claimed”

The trial Court held further at page 119 of the Record of Appeal thus: “Consequently, I hereby enter judgment for the Plaintiff against the Defendant as per the Plaintiff’s claim before the Court, save for Claims 6 and 8 which are refused for the reasons stated supra…”

Dissatisfied with the part of the judgment where the trial Court refused to grant the prayer for special damages in favour of the Appellant and against the Respondent, the Appellant filed a Notice of Appeal dated the 18th day of December, 2014 and filed on the 30th day of December, 2014.

The Grounds of Appeal as contained in the Appellant’s Notice of Appeal (without their particulars) are as follows:

GROUND ONE
The learned trial Judge erred in law when he held as follows:
“Coming back to the instant case, although the Plaintiff pleaded this special damages with its particulars in the Statement of Claim at paragraph 22(a) and (b), but at the trial, the Plaintiff did not prove same by leading evidence to show to the Court its entitlement to the damages claimed. In other words, no evidence before the Court to show how much profit the Plaintiff usually make in every product sold on a daily basis with the vehicle”

GROUND TWO
The Court below erred in law when it refused to award the claim for damages sought by the Appellant at the lower Court.

The Record of Appeal was transmitted to this Court on 26/07/2017 but deemed duly compiled and transmitted on 24/11/2020.

On 29/7/2020, the Appellant filed its Brief of Argument which was deemed properly filed on 24/11/2020.
The Respondent did not file any processes in respect of this appeal, including a Brief of Argument.

On 25/10/2021, the Appellant filed a Motion on Notice praying this Court for an Order that this appeal be heard on the Appellant’s Brief of Argument alone. The Appellant’s application was granted on 1/11/2021 and the appeal was heard on the Appellant’s Brief of Argument alone.

ISSUE FOR DETERMINATION
In the Appellant’s Brief of Argument, which was settled by Chibuike Ezeokwuora Esq., a sole issue was distilled for the determination of this appeal, to wit:
“Whether on the state of the pleadings, the unchallenged evidence of the Appellant’s witness and the materials before the Court, the lower Court was right in refusing the grant of the Appellant’s prayer No. 6 for special damages”

ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
At paragraphs 4.11-4.33 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that by the unchallenged testimony of PW1 at paragraph 23 of the Witness Statement on Oath of PW1, the Appellant proved and rendered more than what was evidentially required for the grant of her claim for special damages, and the learned trial Judge did not refer to the said piece of unchallenged and uncontradicted evidence, but proceeded to hold that the Plaintiff did not prove special damages by leading evidence to show to the Court its entitlement to the damages claimed. He contended that the finding of the lower Court on the issue of proof of special damages by the Appellant is perverse and does not flow from the evidence before the Court; and it also goes against the Court’s definitive findings at page 115 of the Record of Appeal. The Appellant’s Counsel contended further that the learned trial Judge did not state which part of the Appellant’s Witness testimony or evidence was not credible or admissible in support of the claim for special damages.

It is the contention of learned Counsel to the Appellant that contrary to the holding of the lower Court that no evidence before the Court to show how much profit the Plaintiff usually makes in every product sold on a daily basis with the vehicle, PW1 led evidence at paragraph 23(c) of PW1’s Witness Statement on Oath to show that the Plaintiff makes 5% profit on every product sold, with a daily average sales volume of N300,000,000.00 per Merchandizing Vehicle and the daily earnings/profit is N15,000.00, thus, the Plaintiff loses N15,000.00 per day.

Learned Appellant’s Counsel submitted that the law on the strict proof of special damages does not mean that there is a minimum measure of evidence or a category or class of evidence required in order to prove special damages, as all the law requires is availability of credible evidence. He relied on the case of OGBONNA V. OGBONNA & ANOR (2014) LPELR-22308 (CA). He submitted further that oral evidence in proof of special damages is acceptable, particularly where it is neither challenged nor controverted. Counsel relied on the case of ADO-IBRAHIM V. ADO-IBRAHIM (2014) LPELR-22850 (CA) and AUDU V. OKEKE (1998) LPELR-6423 (CA). Counsel submitted that it is not necessary that receipts or documents be tendered in addition to the oral evidence of PW1 on the head of special damages claim, since the oral evidence was unchallenged. He relied on the case of UMAN V. OWOEYE (2003)9 NWLR (PT. 825) PG. 221.

In conclusion, the Appellant’s Counsel urged this Court to resolve the sole issue for determination in favour of the Appellant, allow the appeal and set aside the erroneous findings of the lower Court.

RESOLUTION OF THE ISSUE FOR DETERMINATION
This appeal will be determined based on the sole issue submitted for determination by the Appellant in its Brief of Argument. I therefore adopt same as mine. The issue is:
“Whether on the state of the pleadings, the unchallenged evidence of the Appellant’s witness and the materials before the Court, the lower Court was right in refusing the grant of the Appellant’s prayer No. 6 for special damages.”

The learned Counsel to the Appellant submits at paragraphs 4.11-4.23 of the Appellant’s Brief of Argument to the effect that PW1, the Appellant’s Mobile Salesman, who adopted his Witness Statement on Oath, testified as to the average amount of sales he makes for the Appellant per day using the said vehicle, with the profit being 5% of the average daily sales, which is the amount being lost per day on account of the Respondent’s action. He relied on and referred this Court to paragraph 23 of the PW1’s Witness Statement on Oath. He further contends that the evidence on oath at paragraph 23 is unchallenged and credible for the trial Court to grant the special damages.

Now, I have painstakingly gone through the processes filed by the Appellant at the trial Court, especially the Writ of Summons, the Statement of Claim, the Witness Statement on Oath of Mr. Haruna Unekwe (PW1) and the exhibits tendered and admitted in evidence; and it is correct, as submitted by the Appellant’s Counsel that the Respondent, both in this Court and the trial Court did not file any process to contest the suit or claims of the Appellant. However, on a close perusal, the Appellant’s claims are declaratory reliefs being sought against the Respondent. Thus, the grant of a declaratory relief, it must be noted, is discretionary. It will only be granted when the Court is of the opinion that the party seeking it, is, when all the facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. See the cases of RASHIDI ADEWOLU LADOJA V. INEC (2007) LPELR-1738 (SC); ODOFIN V. AYOOLA (1984)11 SC 72.
In the case of MAJA V. SAMOURIS (2002) LPELR-1824, the Supreme Court held as follows:
“This Court further explained that the requirement for oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and that its success depends entirely on the strength of the Plaintiff’s own case and not on defence.”

The law therefore is that for claims or reliefs that border on declaration, the Plaintiff must succeed on the strength of his evidence and cannot rely on the weakness of defence, even on admission. Hence, the claims at paragraphs 25(a), (b) and (c) of the Statement of Claim are declaratory, and they can be regarded as the principal claims. The claims at paragraph 25(d), (e), (f), (g), (h) and (i) are Consequential Orders which are subject to the grant of Reliefs (a), (b) and (c).

Now, the crux of the complaint of the Appellant as shown on the Notice of Appeal are as follows:

GROUND ONE
The learned Trial Judge erred in law when he held as follows:
“Coming back to the instant case, although the Plaintiff pleaded this special damages with its particulars in the Statement of Claim at paragraph 22(a) and (b), but at the trial, the Plaintiff did not prove same by leading evidence to show to the Court its entitlement to the damages claimed. In other words, no evidence before the Court to show how much profit the Plaintiff usually make in every product sold on a daily basis with the vehicle”

GROUND TWO
The Court below erred in law when it refused to award the claim for damages sought by the Appellant at the lower Court.

The above grounds are basically the complaints of the Appellant against the judgment of the trial Court. The question now is whether the holding or decision of the trial Court was right or pervasive in law?

At paragraph 22 of the Statement of Claim, the Appellant pleaded as follows:
“The Plaintiff avers that the action of the Defendant have caused considerable loss to it, as it keeps losing the returns and daily profit made by the Sales Representatives using the vehicle in question which vehicle has been put out of operation by the action of the Defendant.”
PARTICULARS OF SPECIAL DAMAGES
(c) Plaintiff makes 5% profit on every product sold and with a daily average sales volume of N300,000.00 per merchandizing vehicle, the daily earnings/profit is N15,000.00 only per vehicle.
(d) Plaintiff therefore loses N15,000.00 per day being the average daily earning from sales with the vehicle.

For the Appellant to be entitled to special damages by the above pleaded facts, the Appellant must adduce credible evidence in proof of the special damages. In the case of KAKULU V. KAKULU (2016) LPELR-41552, this Court held as follows:
“On prove of a claim in the nature of special damages, the law is that the party claiming must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it.”
It is trite law that where the Claimant specifically alleges that he suffered special damages, he must, as a matter of fact, adduce credible and concrete evidence to prove the special damages in no uncertain terms. The apex Court has laid down the condition precedent in proof of special damages before the Claimant would be entitled to the award. In the case of ARISONS TRADING & ENGINEERING CO. LTD V. THE MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR-554 as follows:
“On the remaining equipment and machinery, it is the finding of the Court below that there was no proof to entitle the Appellant to the special damages claimed. The Court below observed: “The nature of the Appellant’s claim as special damages which must, as a rule, be proved strictly makes the submissions of the learned Counsel on this point to be compelling. Particularly apposite on the exposition of the principles on special damages are MESSRS DUMEZ (NIG) LTD V. P.N. OGBOLI (1972)1 ALL NLR (PT. 1)241, 249-250, ODULAJA V. HADDAD (1973) 11 SC 357 AT 362; WEST AFRICAN EXAMINATION COUNCIL V. KOROYE (1977)2 SC 45 AT 54; BASSIL V. FAJEBE (1990)6 NWLR (PT. 155) 172, 179-180; AJIKAWO V. ANSALDO (NIG) LTD (1991)2 NWLR (PT. 173) 359, 373; AKU NMECHA TRANSPORT SERVICE LTD V. ATOLOYE (1993)6 NWLR (PT. 293) 233, 257; GURARA SECURITIES & FINANCES LTD V. V.I.T.C. LTD (1999)2 NWLR (PT. 589) 29, 48-49 and ACME BUILDERS LTD V. KADUNA STATE WATER BOARD (1999)2 NWLR (PT. 590) 288, 305-306 and 309. On the premise of the principles regulating the award of special damages as expounded by those authorities, the reproduction by rote of the list of machinery by PW1 and PW4 bereft of proper identification of each equipment falls far short of what is required to prove special damages. It is trite that special damages must be proved positively from facts which satisfy the Court of their truth but not by repeating on oath undigested averments in the Statement of Claim that are lubricated by various guesswork to lend them semblance of factual authenticity. See NTITI V. AFATSAO (1970)2 ALR COMM. 148, 150-151. The evidence by the Appellant has failed to establish the Company’s possession or ownership of the other five equipment. I am in complete agreement with the Court below. Not only must special damages be specifically pleaded, they must be specifically proved by the Plaintiff. See OSUJI V. ISIOCHA (1989)3 NWLR (PT. III) 623, OTARU & SONS LTD V IDRIS (1999)6 NWLR (PT. 606)330; ATTORNEY GENERAL OF OYO STATE V. FAIRLAKES HOTEL NO. 2 (SUPRA). They are those pecuniary losses actually suffered up to the date of the trial, such as loss of earnings. The requirement of the law in relation to such damages is that it must be pleaded and proved. It is not a matter of hypothetical exercise nor can it be left to conjecture. If the Appellant was to realize anything from the special damages claimed, it should have gone further to lead evidence on those who made inquiries to hire each item of the equipment/machinery. It should have also led evidence in proof of loss of interest from the capital which led lay idle, depreciation and maintenance.”

In the instant appeal and by virtue of the deposition of the Appellant’s Witness PW1 at paragraph 23 of his Witness Statement on Oath before the trial Court, it is in the nature of the repetition of paragraph 22 of the Appellant’s Statement of Claim. Paragraph 23 of PW1’s Witness Statement on Oath states as follows:
23. I know that the actions of the Defendant have caused considerable loss to the Plaintiff as it keeps losing the returns and daily profit that I usually make using the vehicle in question which vehicle has been put out of operation by the action of the Defendant.
PARTICULARS OF DAMAGES
(c) Plaintiff makes 5% profit on every product sold, and with a daily average sales volume of N300,000.00 (Three hundred thousand Naira) per Merchandizing Vehicle, the daily earnings/profit is N15,000.00 (Fifteen Thousand Naira only per vehicle).
(d) Plaintiff therefore loses N15,000.00 per day being the average daily earning from sales with the vehicle.

By the above deposition of PW1, the Appellant did not afford the trial Court the opportunity to know the number of products and the sales on each of the products, and the 5% profit on each product sold. Further, even if the Appellant’s witness, PW1 had no documentary evidence to tender, his oral testimony or Witness Statement on Oath should be able to explain in detail the sale and the 5% profit from each sale of the products; and then explain how the various amounts translated to the sum of N300,000.00 and then the daily earnings/profit of N15,000.00 per vehicle.

As rightly submitted by the Appellant’s Counsel that the Defendant did not file a defence or contest the claim. Even on a minimal proof, the Appellant’s Witness, PW1 ought to adduce evidence capable of being believed and it must be credible. However, what has been deposed on oath by PW1 was a repetition of paragraph 22 of the Appellant’s Statement of Claim. No proper explanation by PW1 as to the assertion in the Statement of Claim. Many a times, Counsel and litigants make such mistake of repeating the facts averred in the pleadings, in their Witness Statement on Oath. Evidence is proof of assertion in pleadings and not vice versa. Thus, the trial Court was right when it held at pages 117-118 of the Record of Appeal as follows:
“Coming back to the instant case, although the Plaintiff pleaded this special damages with its particulars in the Statement of Claim at paragraph 22(a) and (b), but at the trial, the Plaintiff did not prove same by leading evidence to show to the Court its entitlement to the damages claimed. In other words, no any evidence before the Court to show how much profit the Plaintiff usually makes in every product sold on a daily basis with the vehicle.

At paragraph 3 of page 118 of the Record of Appeal, the trial Court then found as follows:
“In the light of the above, the Plaintiff in the instant case, having not lead any evidence in proof of this claim for special damages, same cannot be granted.”

The finding of the trial Court is correct and perfect in view of the evidence of PW1 at paragraph 23 of his Statement on Oath vis-à-vis the assertion of the Appellant at paragraph 22(a) and (b) of the Statement of Claim; and such finding cannot be disturbed by this Court.

The submission of the Appellant’s Counsel at paragraphs 4.18 of the Appellant’s Brief of Argument that the learned trial Judge did a ‘U’ turn or summersault to hold that the Appellant did not lead credible and admissible evidence to support her claim for special damages is uncalled for, and Counsel should be civil and respectful to the trial Judge and the office a trial Judge occupies. The decision or finding of the trial Judge is based on the facts and evidence before it and by his own understanding, which I hold the view to be correct in law.

Furthermore, at paragraph 4.20 of the Appellant’s Brief of Argument, Counsel submits that the finding of the trial Court is very perverse and he completely ignored the unchallenged evidence of PW1. This submission of Counsel is absolutely wrong and he does not appear to have proper appreciation of the meaning of the term “perverse”. The Apex Court and indeed this Court have in quite a number of decisions held that “a perverse finding is a finding of facts which is merely speculative and not based on the pleadings and evidence before the Court or where the Court has drawn wrong inference from the evidence before it, thereby occasioning a miscarriage of justice.” See IWUOHA V. NIPOST LTD (2003)1 NWLR (PT. 822) 308; MMAMMAN V. FRN (2013) VOL. 2-3 MJSC (PT. 11) 168; OLANIYAN & ORS V. FATOKI (2013) VOL 7 MJSC (PT. 11) 1 and FIXITY INVESTMENT LTD V. ALHAJI AMINU MOHAMMED GUMEL (2016) LPELR-41549 (CA).

In the instant case, the trial Court painstakingly considered paragraph 22(a) and (b) of the Statement of Claim and the evidence of PW1 and rightly came to the conclusion that the Plaintiff failed to lead credible evidence in proof of the claim for special damages. Is there a ‘U’ turn or summersault or finding that is perverse? The answer is in the negative.

In sum, the sole issue is hereby resolved against the Appellant and in favour of the Respondent. Thus, this appeal is unmeritorious and it is hereby dismissed.

Accordingly, that part of the trial Court’s decision dismissing the Claim of the Appellants for special damages in Suit No. FCT/HC/CV/3145/2013 delivered on 30/09/2014 by O. A. MUSA J. is hereby affirmed.
No award as to cost.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Danlami Zama Senchi, JCA.

I am in complete agreement with the reasoning and the conclusion that the appeal is lacking in merit.
I for the same reasons which I adopt as mine do dismiss this appeal. I abide by the consequential orders made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Danlami Zama Senchi, JCA.

I am in agreement with the reasoning and conclusion reached therein. Proof of the Claimant’s case in Court matters is established through balance of probability or preponderance of evidence. Where it is for claim in the nature of special damages, there must be credible and cogent evidence, strict proof, that would suggest the claimant is entitled to such claim. The Appellant failed to so prove with respect to claims (c) and (d) as rightly found by the Court below.

In consequence, this appeal cannot be allowed, it is unmeritorious and is hereby dismissed. I affirm the decision of the Court below delivered on 30/09/2014 by O. A. Musa J.
I make no order as to costs.