M.I. EDIONHON V. UNION BANK OF NIGERIA PLC (2013)

M.I. EDIONHON V. UNION BANK OF NIGERIA PLC

(2013)LCN/6755(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2013

CA/B/137/2006

RATIO

EFFECTS OF AVERMENTS IN PLEADINGS TO WHICH NO EVIDENCE HAS BEEN ADDUCED

A cardinal principle of pleadings, is that it is the party’s pleadings which defines his line of evidence at the trial of an action in court, therefore, averments in pleadings without evidence adduced thereon by the party who pleaded such facts, go to no issue as no onus is cast on the other party to disprove the facts not established by evidence. Just see Kate Enterprises Ltd. V. Daewoo (Nig) Ltd. (1985) 2 NWLR (Pt. 5) 116; (1985) 7 SC 1; (1985) 2 NSCC 842; Midford Edomsowan V. Kenneth Ogbefun (1996) 4 SCNJ 21 at page 33; (1996) 36 LRCN 432; (1996) 4 NWLR (Pt. 442) 266; Ibrahim V. Ojomo & Ors. (2004) 11 WRN 1; (2004) 4 NWLR (Pt. 862) 89; (2004) All FWLR (Pt. 190) 285; (2004) 4 MJSC 143; (2004) 1 SCNJ 309; (2004) 1 SC (Pt. 11) 136 and Abubakar V. Joseph & Anor. (2008) 50 WRN 1; (2008) 6 SCNJ 226; (2008) All FWLR (Pt. 432) 1065.

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

M.I. EDIONHONAppellant(s)

AND

UNION BANK OF NIGERIA PLC.Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Benin City. The claim of the appellant being the plaintiff at the said court against the respondent/defendant was for:
(1) A declaration that being a Shareholder of the Defendant/Company, he is entitled to:
(a) All bonus shares issued for the years 1993 to 1997;
(b) All dividends payable to Shareholder for 1993 to 1999 amounting to =N=34,338.55.
(c) That respondent’s affairs is being run in a manner oppressive to Appellant in not keeping him informed of the Respondent’s affairs from 1993 to 1996 and failure to pay him dividends for 1993 to 1996.
(2) SPECIAL DAMAGES for transportation and hotel bills incurred by Appellant for investigation of Appellant’s affairs in Respondent’s Lagos office and lawyer’s fees for services to right the wrong.
(3) GENERAL DAMAGES for the inconvenience and deprivation of Appellant’s share certificates for 9 years; and
(4) An injunction restraining the Respondent and its servants from withholding Appellant’s certificate and dividends.
The appellant became a Shareholder of the defendant in 1979 having bought 100 shares of the defendant and another 100 shares in 1982 with Share Certificates issued to him as Exhibits “A” and “B” respectively. According to the appellant, subsequently a number of bonus shares were issued and the shares were on a number of occasions sub-divided into smaller units. In 1997, the Respondent’s Annual Reports showed a total of 11,666 shares in appellant’s favour. He did not receive any Share Certificate in respect of any additional shares. He wrote several letters requesting for information on the state of his shares and dividends from the respondent over a long period of time without any response from respondent. Appellant said he made several visits/travels to respondent’s Head Office in Lagos, incurred transport and hotel expenses and retained solicitor’s service to obtain the relevant information on his shares and dividends from the respondent. The persistence lack of respondent’s response to appellant’s request resulted in this action, which was dismissed in its entirety by the court below.
On its part respondent agreed that appellant is one of its nominal shareholders, that bonus shares are not paid for by shareholders, no share certificates are issued for sub-divisions of shares, that all appellant’s share certificates have been sent to him except one returned unclaimed and that appellant’s dividends were paid through his Federal Mortgage Bank Account, Benin City. At the end of the trial, judgment was entered for respondent on 3rd December, 2003.
Dissatisfied, the appellant has now appealed to this court by Notice and one ground of appeal filed on 2nd March, 2004 at pages 143 and 144 of the record. With the leave of the court, one additional ground of appeal was later filed. It is ground 2.
In pursuance of the prosecution of the appeal, appellant’s brief of argument settled by S.A. Asemota, SAN., dated 5th June, 2009 was filed on same date.
A sole issue for determination was distilled for determination, thus:
“Whether the learned Trial Judge was right in refusing the special damages claimed and dismissing the case in its entirety.”
The respondent’s brief of argument dated and filed on 20th October, 2010 was settled by Law O. Akhidenor. He formulated two issues for determination, to wit:
“1.. Whether the plaintiff has established that bonus shares, dividends and share certificates are indeed issued and the defendant negligently or refused to send it to him.
2. Whether he has also established that his is entitled to any damages at all.”
In response to the respondent’s brief of argument, learned senior counsel to the appellant filed a Reply brief on 26th November, 2011.
I have perused the issues formulated for determination by learned senior counsel for the appellant and the learned counsel to the respondent, respectively and lam satisfied that the sole issue formulated by the former is more precise and straight to the grounds of appeal, hence I adopt it as the sole issue for the determination of this appeal.
Arguing the sole issue in this appeal, learned senior counsel for the appellant submitted that as a result of the dirth of information with respect to the appellant’s shareholding and dividends, he was entitled as of a right to make inquiries which made him to request for such information from the respondent. Hence, he wrote letters per Exhibits L, M, M1, M2, M3 and M4 to the respondent who did not respond to those letters. Thereafter, the appellant had to travel to Lagos for over 60 times in order to personally make inquiries at respondent’s head office and that when he still could not make a head way, the appellant had to engage the services of a solicitor and he paid the sum of N11,500.00 to the latter, which was evidenced by Exhibit “N”. Learned senior counsel referred to the appellant’s evidence at pages 119- `120 of the record of appeal.
Learned senior counsel, was insistent in his submission that special damages was specifically pleaded and strictly proved per Exhibit “N” which according to him, was a natural and probable or direct consequence of the respondent’s act of negligence and omission for which the appellant was entitled to be compensated. He referred to WORDS AND PHRASES LEGALLY DEFINED, VOL 2 (D – H) by John B. Saunders at pages 7 – 8 where the phrase “special damages” was defined. He urged that the appeal be allowed.
Learned counsel to the respondent submitted that there is evidence that dividend warrants were posted by the respondent to the appellant through his Benin address via the Federal Mortgage Bank, Benin-City. He referred to Exhibit R which shows the list of the dividends sent to the appellant’s bank and these were not
controverted by the appellant.
Learned counsel placed reliance on Oluhunde V. Adeyoju (2000) 79 LRCN 2297. It is the further submission of learned counsel to the respondent that there was no contractual agreement which bound the respondent to pay the appellant’s transportation and hotel expenses, because according to him, the appellant was on a frolic of his own.
Learned counsel, furthermore contended that in order to be entitled to special damages, the same must be strictly proved which the appellant failed to do. He relied on Hyacinth V. Escani (2001) 2 NWLR (Pt. 643) 1 and urged that the appeal be dismissed.
A complaint that a judgment is against the weight of evidence is tantamount to a challenge against the weighing of the pieces of evidence proferred by the parties, by the trial court and that it was wrongly done by him. Hence, the totality of the evidence led in the action by both parties are put on an imaginary scale, the scale of justice, and weighed together. The admissible and relevant pieces of evidence for the plaintiff and that for the defendant are put on each side of the scale respectively and weighed together, in order to determine whose evidence weighs more or is heavier than the other. That is, the side to which the scale of justice tilts to and preponderates. Of course, this will not depend upon the quantity/number of the witnesses who testified for each side, but by the quality or probative value of their pieces of evidence. That is why it is the law that in civil actions, proof of a claim is on a balance of probability.
In Mogaji V. Odofin (1978) 4 SC 91, his Lordship, Fatayi-Williams, JSC (as he then was) stated the law succinctly, that:
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.”
This same principle was re-echoed by the apex court in Abusi Ekwealor & Ors. V. Vincent Ekwealor & Ors. (1993) 6 NWLR (Pt.302) 643.
The action at the court below was fought largely on documentary evidence. There is no doubt that there were exchange of correspondences between the parties with respect to the shareholding of the appellant with the respondent bank. And whereas the appellant insisted that his share warrants and dividends which had progressively increased were not paid to him, the respondent provided evidence to the effect that as per Exhibit “R”, the appellant’s share dividends were duly paid into the former’s account through the Federal Mortgage Bank, Benin City.
The learned trial judge found that Exhibit “R” was not contradicted by the appellant. That finding was very crucial and it was not appealed against, so it remains extant and binding. Akere V. Governor, Oyo State (2012) All FWLR (pt. 634) 53 at 81 (SC); All Progressive Grand Alliance, APGA & Anor. V. Chief Victor Ume (2011) 3 SCNJ 274; Calabar V. Ekpo (2008) 2 SCNJ 307 at 324 – 325.I have myself perused the said Exhibit “R” and it is crystal and clear to me that it contains the list of the dividends of the appellant which the respondent paid into the former’s account at the Federal Mortgage Bank, Benin City. It seems to me very clear that Exhibit “R” knocked off the bottom from the appellant’s claim, that his share dividends were not paid to him by the respondent. And that is why the learned trial judge, rightly in my view held that the non-contradiction of Exhibit “R” by the appellant, was “very fatal to his case.” I, agree with him.
The appellant at paragraphs 13, 14, 15, 15B, 16, 17, 18 and 18B, of his Further Amended Statement of Claim, averred, to wit:
“13. In 1993, the defendant company issued Bonus shares of one new share for every one share held to every shareholder including the Plaintiff. By this issue, the Plaintiff’s shareholding in 1993 in the defendant company became 3,500 ordinary shares of 25k per share. Plaintiff shall rely on documents evidencing this issue. The defendant has not up till now issued the Plaintiff with the share certificate for the additional, 1,750 shares acquired by the 1993 Bonus issue despite repeated demands. Plaintiff would at the trial rely and found upon the 1993 Annual Report and Account of the Defendant.
14. The defendant in 1994 issued a Bonus of one new share for every four shares held in 1994 and the Plaintiff acquired additional 875 bringing Plaintiffs total shareholding to 4,375. At the trial, Plaintiff shall produce document(s) evidencing this issue. Defendant has not till now issued Plaintiff with the share certificate for the additional 875 share acquired by 1995 Bonus issued. Plaintiff would at the trial rely and found upon the 1995 Annual Report and Account of the Defendant.
15. In 1995, defendant issued a Bonus of one new share for every share held in 1995. By this issue, Plaintiff acquired additional 4,375 shares to his existing 4,375 shares bringing Plaintiffs total shareholding in the defendant company to 8,750 ordinary shares of 25k per share. Plaintiff shall rely on relevant document at the trial. The defendant had not till today issued Plaintiff with the share certificate for the additional 4,375 shares acquired by 1995 Bonus issued. Plaintiff would at the trial rely and found upon the 1995 Annual Report and Account of the Defendant.
15b. In 1997, the Plaintiff acquired 2917 new shares by virtue of a Bonus issue by the defendant of one new share to every three held by September, 1997 bringing his shareholding to 11,667 shares. Plaintiff would at the trial rely and found upon the 1997 Annual Report and Account of the Defendant.
16. In 1995, the amount of dividend payable on every 25k share held by the defendant was 15k. Thus, the Plaintiff 3500 shares in 1993 attracted the sum of N525.00. The defendant has not up till now paid to the Plaintiff the said N525.00 that accrued to his 3,500 shares in 1993. Plaintiff shall rely on documents relevant to this at this trial. On the 1993 Annual Report and Account of the Defendant.
17. In 1994, the amount payable on 25k share as dividend was also 15k. Thus, Plaintiff’s 4,375 shares in 1994 attracted a dividend of N656.25k. Up till now, the defendant has refused/failed to pay to the Plaintiff the said N656.25k despite repeated demands. Plaintiff shall rely on document which put the 1994 dividend payable on 25k share at 15k. Annual Report and Account of the defendant is to be tendered.
18. In 1995, the amount of dividend payable on every 25k share was increased to 20k by the defendant. Thus, the Plaintiff’s 8,750 shares in 1995 attracted a dividend of N1,750.00. Up till now, the defendant has refused/failed to pay the said N1,750.00 to the Plaintiff despite repeated demands. Plaintiff shall rely on document(s) which fixed the 1995 dividend payable on 25k share at 20k and in 1996 the amount of dividend payable on every 50k share was as stated in the Annual Report of the year 50k share was as stated in the Annual Report of the year 50k and therefore the Plaintiff’s dividend for 1996 is/was N4,375 for 8,750 shares. Plaintiff would at the trial rely and found upon the 1996 Annual Report and Account of the Defendant.
18B. The defendant paid a dividend of 55k per every 50k share held by a shareholder in 1997. The dividend for the 11,667 shares of the Plaintiff became N614.07k and in 1998, a dividend of 70k per share of 50k and the Plaintiff became entitled to a dividend of N8,166.09k for his 11,667 shares. The 1997 and 1998 Annual Report and Account of the defendant is to be rely upon.”
A cardinal principle of pleadings, is that it is the party’s pleadings which defines his line of evidence at the trial of an action in court, therefore, averments in pleadings without evidence adduced thereon by the party who pleaded such facts, go to no issue as no onus is cast on the other party to disprove the facts not established by evidence. Just see Kate Enterprises Ltd. V. Daewoo (Nig) Ltd. (1985) 2 NWLR (Pt. 5) 116; (1985) 7 SC 1; (1985) 2 NSCC 842; Midford Edomsowan V. Kenneth Ogbefun (1996) 4 SCNJ 21 at page 33; (1996) 36 LRCN 432; (1996) 4 NWLR (Pt. 442) 266; Ibrahim V. Ojomo & Ors. (2004) 11 WRN 1; (2004) 4 NWLR (Pt. 862) 89; (2004) All FWLR (Pt. 190) 285; (2004) 4 MJSC 143; (2004) 1 SCNJ 309; (2004) 1 SC (Pt. 11) 136 and Abubakar V. Joseph & Anor. (2008) 50 WRN 1; (2008) 6 SCNJ 226; (2008) All FWLR (Pt. 432) 1065.

Hence, parties are bound strictly by their pleadings, which they cannot depart from in their evidence, which must be in support of such pleadings. See Ogiamen V. Ogiamen (1967) NMLR 245; (1967) All NLR 191; (1967) NSCC 190; NIPC Ltd. V. Thompson Organization Ltd. (2001) 15 WRN 79; (1969) 1 All NLR 138; (1969) NMLR 99; ACB V. Gwagwada (1994) 4 SCNJ (Pt. 11) 266 at page 277; (1994) 5 NWLR (Pt. 342) 25 and Ekpelechi Ukaegbu & Ors. V. Ugoji & Ors. (1991) 7 SCNJ (Pt. 11) 244 at page 270; (1991) 6 NWLR (Pt. 196) 127; (1995) 5 LRCN 1427.
I am afraid, the appellant failed to lead evidence in proving or even fleshening the averments at paragraphs 13, 14, 15, 15B, 16, 17, 18, 18B of his further amended statement of claim reproduced above. Those averments remain bare and bald. They are like dead bones in a valley without any tissue of flesh on them, hence they are worthless and which further damnified the appellant’s claim.
Now, to the claim for special damages. The appellant hinged this on Exhibit “N”. The law with respect to special damages is that it must be specifically pleaded and strictly proved. What this means, is that the facts which will prove special damages, must first be particularized in the averments of the claimant’s pleadings and secondly at the trial, evidence must be led, demonstrating how the losses which the claimant suffered occurred. A special damage is not at large. It is quantifiable and measurable. And where the special damages are traceable to documentary evidence, such as receipts obtained by the claimant in the course of what he suffered monetarily, at the instance of the defendant’s negligence and/or act of omission, the averments in the pleading will ex facie so indicate and at the trial, evidence will be led to introduce them into evidence. The apex court, more recently in Adim V. Nigerian Bottling Co. Ltd & Anor (2010) 4 SCNJ 222 at 235 per my Lord, Musdapher, JSC (as he then was) reiterated the principle of the law with respect to special damages, inter alia:
“The particularity of the pleading and the evidence must be such that the losses are exactly known and accurately measured. lt must be measurable and quantifiable. The nature of the pleading and the evidence must establish the entitlement to such damages which will immediately lead to the measurement and quantification of the losses. See Dumez V. Ogboli (1972) 3 SC 196. But where there has been a proper and adequate pleadings, the unchallenged evidence, without more can constitute sufficient proof of special damages. See Adel Boshali V. Allied Commercial Exporters Ltd. (1961) All NLR 917, Odulaja V. Haddad (supra) (1973) 11 SC 351, N.M.S.L. V. Afolabi (1978) 2 SC 79.”
The appellant, at paragraphs 32 and 41 of the further amended statement of claim averred, thus:
“32. Plaintiff made numerous trips to Lagos inquiring about the position of his shares, asking for an (sic) (and) demanding certificates and dividends and lodged in hotels during those trips and took transportation and incurred sundry expenses. Plaintiff will at the trial tender and rely on the Hotel Bills and Transport Receipts he was issued in the course of his trips to Lagos which said trips were occasioned by defendant’s breach of contract of allotment of shares between Plaintiff and defendant and by defendant’s negligent handling of his shares.”
41. WHEREOF the Plaintiff claim against the defendant as follows:-
A. A DECLARATION that the Plaintiff being a shareholder of the defendant company is entitled to all bonus shares issued to existing shareholders for the year 1993 , 1994, 1995, 1996 and 1997 and such others that may be issued in the future.
B. A DECLARATION that the plaintiff is entitled to all the dividends payable by the defendant to the shareholder for the years as follows:
(i) 1992,           3,500 shares      525.00
(ii) 1994,          4,375 shares      656.25
(iii) 1995,       8,750 shares      1,750.00
(iv) 1996,      8,750 shares      4,375.00
(v) 1997,     11,667 shares      6,614.7
(vi) 1998,     11,667 shares      8,166.9
(vii) 1999,    11,667 shares       12,250.7
N34.338.55
C. A DECLARATION that the affairs of the company (defendant) has been runned by the company in manner oppressive to the interest of the Plaintiff in not keeping the Plaintiff informed of the state of affairs of the company for the 1993, 1994, 1995, and 1996 annual years and/or for failing to pay the dividends for the years and failure to issue share certificates arising from the bonus shares for 1993, 1994, 1995 and 1996 to the Plaintiff.
D. AN ORDER directing the defendant to pay all the dividend due to the Plaintiff aforementioned and to issue all the share certificates due to the plaintiff forthwith.
E. SPECIAL DAMAGES arising from the transportation and hotel bills incurred during the investigation of the Plaintiffs affairs in the defendant’s office in Lagos N65,000 as transport fares, hotel bills and N365,000 spent in an effort to right the wrong of the continued breach of the contract agreement’
Now, when were “the numerous trips” that the appellant made to Lagos to enquire about his share, dividends and certificates with the respondent’s office in Lagos? How much did each trip to and from Lagos cost him? What were his hotel bills on each of the numerous trips to Lagos?
These are the salient facts needed to have been adequately and specifically pleaded by the appellant in his further amended statement of claim. And it is upon that foundation that the receipts tendered in evidence as Exhibit “N”, would have been clearly demonstrated as having strictly proved the losses he suffered in the course of his “numerous trips” to Lagos to find out the position of his dividends and share certificates with the respondent. Therefore, since the proper foundation was not laid by an adequate pleading of the losses that the appellant suffered in the course of pursuing his dividends, bonuses, shares and certificates, Exhibit “N” had nothing to support. A specific and adequate pleading of special damages precedes the strict proof of the same. The claim of the appellant, suffered from a lack of adequate and specific pleading and strict proof of the special damages which to my mind, was not available to him. I, too like the learned trial judge, so hold.
It seems clear to me that the appellant was indeed over-anxious and desperate in collecting his dividends and shares and also assessing his anticipated bonuses, a gold mine of a sort, from the respondent. However, as established by Exhibit “R”, his shares/dividends were duly paid into his account at the Federal Mortgage Bank, Benin City whilst the anticipated bonuses were not proved by the appellant, to have been declared by the respondent, so it became elusive, a mirage and a fortiori, unavailable to the appellant.
In sum, I resolve the sole issue in this appeal against the appellant.
The appeal is straw and lacking in merits. It is dismissed.
The judgment of I.N. Auta, J., (as he then was) in Suit No. FHC/B/157/95 of 3rd December, 2003 is accordingly affirmed.
Each side to bear own costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.; I have read the judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA. I agree that this appeal has no merit and should be dismissed. The appellant failed to prove his claim of special damages at the trial Court as he led no evidence of special damages incurred by him in trying to secure the attention of the respondent.
I reluctantly abide by the order as to costs as put by my learned brother.
This in my view is a case where the appellant should pay costs to the respondent for wasting its time and for incurring unnecessary expenses.
Appeal Dismissed.

AYOBODE O. LOKULO-SODIPE, J.C.A.; I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, J.C.A. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is unmeritorious and it fails. Accordingly, I too affirm the judgment of the lower court delivered on 3/12/2003 in Suit No: FHC/B/157/95. Furthermore, I abide by the order relating to costs, as made in the lead judgment.

Appearances

Mrs. Stefan Ezomo (with Mrs. Osarieme Omorogie)For Appellant

AND

I.N. EwansihaFor Respondent