MCDONALD SCIENTIFIC EMPORIUM LTD v. ACCESS BANK (2021)

MCDONALD SCIENTIFIC EMPORIUM LTD v. ACCESS BANK

(2021)LCN/15077(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/L/887/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MCDONALD SCIENTIFIC EMPORIUM LTD APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

RATIO

WHETHER THE PLAINTIFF IS AUTOMATICALLY ENTITLED TO JUDGMENT, WHERE THE DEFENDANT OFFERED NO EVIDENCE IN DEFENCE OF THE CLAIM AGAINST HIM

I find the holding of MUHAMMAD, J.C.A. (as he then was, later J.S.C.) in the case of Okoebor Vs. Police Council (supra) at page 545 paragraphs A-B particularly relevant to this contention of the Appellant, thus: Learned Counsel to the Appellant had raised and placed a lot of emphasis on the evidence adduced by the Appellant as plaintiff, which was described as uncontradicted and uncontroverted. It is indeed the law that where the defendant offered no evidence in defence of the claim against him as happened in the instant case, the plaintiff’s evidence before the Court in such circumstances clearly goes one way, with no other evidence to be placed on the proverbial imaginary scale as against such evidence giving by or on behalf of the plaintiff. However, where that happens, it does not mean that the plaintiff is automatically entitled to judgment. The uncontradicted and uncontroverted evidence adduced by the plaintiff must be evaluated and appraised by the trial Judge to determine if it supports the claim of the plaintiff. In other words, in such circumstances the onus of proof placed on the plaintiff is discharged only on the minimal proof…. Therefore in the present case, where the Appellant as the plaintiff had failed to discharge even the onus of minimal proof required, the lower Court was right to dismiss his claim. It is therefore settled law that the fact that there was no evidence from the Respondent/defendant does not in any way mean the Appellant is automatically entitled to judgment in its favour as contended. The law requires the trial Judge to examine the pleadings and the evidence placed by the claimant and determine its probative value, which is what is meant by the legal parlance that the claimant has to succeed on the strength of the case he placed before the Court rather than on the weakness of the defence or the fact that there was no defence. The burden of proof on he who asserts, is concerned with the relative strength of the total evidence in relation to the issues in dispute or claims related to the issues. Though, burden of proof in civil case is not static as in criminal cases, but the claimant has the initial burden to introduce, at least a credible prima facie (minimal) evidence which if not rebutted would entitle it to judgment. The evidence in support of the claims must not only be unchallenged, but it must also be credible and sufficient to sustain the claims. See DURU VS. NWOSU (1989) 4 NWLR (PT. 96) at 184 (SC), ROCKONOH PROP. CO. LTD VS. NITEL PLC (2001) 14 NWLR (PT. 733) 468 (SC), GREEN FINGERS AGRO-IND. LTD VS. YUSUFU (2003) 12 NWLR (PT. 835) 514 (CA) and ARAB CONSTRUCTION LTD & ANOR. VS. ISAAC (2012) LPELR 9787 (CA). PER BALKISU BELLO ALIYU, J.C.A.

WHETHER A CASE CAN BE COMPLETELY CHALLENGED BY CROSS-EXAMINATION

It is therefore incorrect to say that the Appellant’s case was completely unchallenged, since evidence elicited through cross-examination runs in pari passu with evidence in chief and in fact, such evidence is more reliable than the evidence in chief as was held by this Court in OBAJIMI & ORS. VS. OLOYE & ANOR. (2017) LPELR- 42709 (CA) relying on the Apex Court’s decision in OFORLETE V. STATE (2000) 3 NSCQR 243 at 268 per ACHIKE JSC, where it was held that cross-examination is a noble art which constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. See also the case of AGBAJE VS. FASHOLA (supra) cited by the Respondent in support of its correct argument that the Appellant’s case was indeed challenged by cross-examination. PER BALKISU BELLO ALIYU, J.C.A.

WHETHER IT IS THE DUTY OF THE COURT TO FILL IN THE GAP WHERE THE EXISTENCE OF AN ESSENTIAL FACT ON WHICH A PARTY RELIES IS LEFT IN DOUBT

It is not the duty of the Court to fill in the gap created in the case of a party. See the case of W. A. C. C. LTD VS. CAROLINE POULTRY FARMS LTD (2000) 2 NWLR (PT. 644) 197 at 206 paragraphs A-C (CA), where this Court held that: Where proof of an issue is left in doubt by the plaintiff so that the Court would be required to speculate, the plaintiff on whom the burden ultimately rests must lose. It also follows that where the existence of an essential fact on which a party relies is left in doubt, or uncertainty, the party on whom the burden rests to establish the fact should suffer and not his adversary. Therefore evidence which is equally consistent with two or more conflicting or propositions or with opposing theories or which leads as reasonably to one hypothesis as to another, tends to support neither and such evidence will not support a judgment in favour of the proponent. PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (trial Court), delivered on the 27th February 2017 in respect of suit No: LD/909CML/2015 filed by the Appellant as the claimant against the Respondent who was the Defendant before the trial Court. The Appellant filed the suit vide a writ of summons accompanied with a statement of claim filed on the 21st July 2015 (contained in pages 1 to 11 of the record of appeal), wherein it claimed the following reliefs against the Respondent:
1. A declaration that the Claimant’s original Deed of Assignment dated 13th August 2007 and registered as No. 16 at page 16, volume 2180 of the Lands Registry Office in Lagos in respect of the property located at Plot 152, Raymond Iromaka Close by Festac/Amuwo Bridge, Amuwo Odofin, Lagos (which the Claimant deposited with the Defendant as security for banking facilities granted by Defendant to the claimant) is in the possession of the Defendant.
2. A declaration that the Defendant’s failure, refusal and/or negligence to respond to First City Monument Bank’s letter dated 17th

November 2014 by confirming to First City Monument Bank that the Claimant’s original title document is in the Defendant’s possession (so as to enable FCMB liquidate Claimant’s N9, 409, 089. 45 debt amounted to negligence and breach of the Defendant’s fiduciary obligation and duty of care to the Claimant.
3. An Order compelling the Defendant to immediately produce the original Deed of Assignment dated 13th August 2007 and registered as No. 16 at page 16, volume 2180 of the Lands Registry Office in Lagos in respect of the property located at Plot 152, Raymond Iromaka Close by Festac/Amuwo Bridge, Amuwo Odofin, Lagos and hand the said Deed over to the Claimant immediately.
4. An order compelling the Defendant to pay special damages to the Claimant in the sum of N82, 599, 386. 92 being loss of income/profit suffered by the Claimant as a result of the Defendant’s failure, refusal and/or negligence to confirm to First City Monument Bank that Claimant’s Original Deed of Assignment is in the Defendant’s possession.
5. An order compelling the Defendant to pay general damages to the Claimant in the sum of N100,

000, 000 for Defendant’s negligence and breach of fiduciary duty of care and diligence owed to the Claimant regarding its original title documents deposited with the Defendant
6. A declaration that the Defendant is directly responsible for the black listing of the Claimant’s name on the Credit Bureau (as a bad debtor) and the Claimant’s consequent inability to obtain credit facility from all Nigerian Banks.
7. An order compelling the Defendant to pay special damages to the Claimant in the sum of N150, 000, 000 being loss of income/profit suffered by the Claimant as a result of listing of the Claimant’s name on the Credit Bureau and the subsequent inability of the Claimant to obtain credit facilities from Nigerian Banks which was caused by the Defendant.
8. An order compelling the Defendant to pay general damages in the sum of N100, 000, 000 for the Claimant’s name, reputation, brand and goodwill which have been tarnished and rendered worthless as a result of blacklisting of the Claimant’s name on the Credit Bureau which was directly caused by the Defendant.
9. An order compelling the Defendant to pay the

Claimant the sum of N10, 000, 000 being otherwise unnecessary legal expenses that the Claimant was forced to incur as a result of the Defendant’s negligence and breach of its duty of care and diligence owed to the Claimant.
10. An order compelling the Defendant to pay interest to the Claimant on the total sums awarded in claims (d) above at the rate of 20% per annum from 30th September 2014 (being the last peak of the Claimant’s business) until the judgment in this suit is fully satisfied by the Defendant.

The facts of the case that gave rise to the suit are that the Appellant was a customer of the Respondent and in that capacity the Respondent offered it a loan facility in 2008 which was extended from time to time over the years. According to the Appellant (paragraph 5 of its statement of claim, page 5 of the record), the security for the loan “included but was not limited to a legal mortgage on property located at Plot 152 Raymond Iromaka Claose by Festac/Amuwo Odofin, Lagos covered by Deed of Assignment registered as No. 16 at page 16 in volume 2180 of the land Registry Office Lagos”, which “property is owned by and

registered in the name of the Claimant”.

The Appellant wanted to raise fund in a bid to purchase goods to stock up its warehouse and it approached the First City Monument Bank Ltd (FCMB) to seek a loan facility, and the bank agreed to grant same to it. The FCMB wrote a letter to the Respondent (Access Bank) and offered to liquidate the Appellant’s outstanding indebtedness and swap same with the title documents used as security for the loan. The Respondent expressed its willingness to swap the title documents as soon as the Appellant’s indebtedness is liquidated. However, the Respondent informed FCMB that the said facility was secured by a legal mortgage over a property covered by Certificate of occupancy registered as 63/63/1989 in the name of Winifred Augustina Odeinde, which was not the same as the document the Appellant claimed to have deposited with the Respondent as security for the loan facilities. Thus the claims of declaratory reliefs against the Respondent stated supra.

The Respondent denied the claims of the Appellant and filed its statement of Defence copied in pages 113 to 123 of the record of appeal. During the trial

each party called one witness and tendered several documents in support and in opposition to the claims. Parties also filed written final addresses after which the case was adjourned for judgment that was subsequently delivered on the 27th February 2017 whereby the trial Court found that though the witness statement on oath of the Respondent was incompetent and struck out, to the effect that the Appellant’s case was unchallenged, still the Appellant failed to call credible evidence to establish his entitlement to the declaratory claims it sought from the Court. In the final analysis, the learned trial Judge held that:
After having considered the entirety of the facts before it as regards the declaratory reliefs sought by the claimant, the Court finds that the claimant is not entitled to the exercise of the Court’s discretion and the grant of declaratory reliefs it seeks in reliefs (a), (b) and (f) in the writ of summons and statement of claim filed by the claimant. The reliefs are accordingly refused.

The Appellant was aggrieved with the judgment and filed notice of appeal against it on the 26th May 2017 relying on six grounds of appeal

to pray this Court to set aside the judgment and grant all the reliefs it sought before the trial Court.

The appeal was entered on the 12th July 2017 and the Appellant filed its brief of argument, settled by Ayoola Ajayi Esq of Oak Partners, on the 8th of August 2017. The learned counsel distilled and proposed a lone issue for the determination of the appeal from the six grounds of appeal thus:
Given the Respondent’s failure to contradict, deny, controvert or challenge all the evidence/testimony adduced by the Appellant through CW1, should the Court below have treated this suit as an undefended suit which entitled the Appellant to the grant of all of its claims against the Respondent.

The Respondent opposed the Appeal and filed the Respondent’s brief of argument settled by Obafolahan Ojibara Esq. on the 14th September 2018, but deemed properly filed and served on the 9th December 2020. In the Respondent’s view the following issues call for the determination of this appeal based on the 6 grounds of appeal:
1. Whether the lower Court was right in law in not treating the suit before it as undefended despite having struck out

the Respondent’s witness statement on oath. (Grounds 1 and 2)
2. Whether, in consideration of the entire evidence presented before the lower Court, the Appellant established its entitlement to the grant of the declaratory and other consequential reliefs sought. (Grounds 3, 4, 5 and 6) of appeal

The Appellant considered it necessary to file a reply brief on the 17th June 2019 but consequentially deemed on the 9th December 2020. The appeal was called for hearing on that 9th December 2020 and the Appellant’s learned counsel Ayoola Ajayi Esq. leading Solomon Ojo Esq. adopted the Appellant’s two briefs in urging the Court to allow the appeal and set aside the judgment of the trial Court. Contrariwise, the Respondent’s counsel Obafolahan Ojibara Esq. leading J. O. Finani Esq. relied on the Respondent’s brief to pray that this appeal be dismissed and the trial Court’s judgment affirmed. The submissions of the learned counsel for and behalf of the parties are considered below.

APPELLANT’S SUBMISSIONS
The learned Appellant’s counsel submitted that since the trial Court agreed and upheld the argument of

the Appellant against the witness statement on oath, it ought to have treated the Appellant’s case as undefended. Rather, it deliberately skirted and failed to consider and pronounce upon most of the argument canvassed by the Appellant in its final written address. That the effect of expunging the witness statement on oath is that the Respondent must be taken as having abandoned its pleadings in that it failed to rebut the material allegations of facts made by the Appellant’s CW1 and it is deemed to have admitted all the pleadings of the Appellant. This means that the only pleadings and evidence before the trial Court was that of the Appellant giving an account of the facts of the events that constituted the subject of this suit. It was contended that the trial Court was by law duty bound to accept the uncontradicted facts/evidence as true. He relied for support on the cases of MODUPE V. STATE (1988) 4 NWLR (PT. 87) 130 AT 137, OKOEBOR VS. POLICE COUNCIL (2003) 5 S.C. 11, OGUALAJI VS. A. G. RIVERS STATE (1997) 6 NWLR (PT. 508) and others.

The Appellant’s learned counsel set out each head of the claims of the Appellant before the trial

Court and re-argued the merits of same. He argued that the evidence of CW1 alleging that the deed of assignment was handed over to the Respondent as evidenced by exhibits CW1C and CW1Q, showing that the Respondent indeed has the title documents of the Appellant deposited through its officer of the then Intercontinental Bank, which Respondent did not dispute. Yet it refused to acknowledge to the FCMB Bank that was willing to buy the debt of the Appellant from it and also it withdrew the loan offer to the Appellant. This resulted in the Appellant incurring losses from the cancelled orders from its suppliers and it could not stock up its warehouse in order to partake in the annual massive sales during the peak period of business.

It was further argued that in the circumstance, the trial Court ought to have granted Appellant’s reliefs 27 (a) –(j) including its special damages that it particularized in pleadings and evidence of its CW1 in view of the trial Court’s Order15 Rule 5(1). The said Rule provides that any claim not specifically denied by an opponent shall be taken as admitted by that party. He relied for support on the cases of

MERIDIEN TRADE CORPORATION LTD VS. METAL CONSTRUCTION (W.A.) LTD (1998) 3 S.C. 20 and SODIPO VS. OGIDAN (2007) ALL FWLR (PT. 393) 67 at pages 88 -89 and to urge the Court to reverse the judgment of the trial Court and to replace it with an order granting all the reliefs sought.

RESPONDENT’S SUBMISSIONS
On the Respondent’s issue one, its learned counsel submitted that the contention of the Appellant that since the Respondent’s witness statement on oath was struck out, its suit ought to have been treated as an undefended is contrary to all established principles and tenets guiding the grant of declaratory reliefs which the Appellant sought in this suit. He said the trial Court was completely in order when it identified the reliefs sought by the Appellant to be declaratory (page 321 of the record) and stated the principle of law that such reliefs cannot be granted without good and sufficient evidence shown even where the evidence is unchallenged. He relied on the decisions of this Court in the cases of AGBAJE VS. FASHOLA (2008) LPELR-3648, NIPOST VS. MUSA (2013) LPELR-20780 (CA) among others for support on the principle of law that

a claimant of declaratory reliefs has the legal duty to establish his right to the grant of same not withstanding admission of same by the Defendant or failure of the defendant to traverse the claims.

Further submitted that the case of Dingyadi V. Wamako (2008) 17 NWLR (pt. 1116) 395 relied by the Appellant is not authority to the effect that declaratory reliefs can be granted even in circumstances where a Defendant “throws in the towel”. The law remains that the plaintiff must establish his entitlement to the grant of declaratory reliefs.

It was further pointed out that the Respondent has cross-examined the witness of the Appellant, which was one of the many ways to contradict and challenged a party’s case. That, the witness statement on oath is not akin to an affidavit which is a documentary evidence that if not contradicted, the Court can accept as true. But a statement on oath of a witness becomes evidence only after the witness adopts it and he is cross-examined on, vide the cases of Oke & Anor. Vs. U.B.A. Plc. & Anor (2015) LPELR-24827, Ita Vs. Ekpenyong (2001) 1 NWLR (pt. 695) 587 at 614 and Okpa V. Irek & Anor.

(2012) LPELR-8033 (CA). Conclusively on issue one, the Respondent argued that the trial Court was right not to have treated the Appellant’s suit as undefended in the light of the relevant principles of substantive and procedural law cited supra and the this Court was urged to resolve issue one in favour of the Respondent.

On the Respondent’s proposed issue two, the Court was referred to the facility letter dated 15th September 2008 and 11th September 2008 in pages 21 and 24 of the record of appeal, which clearly stated that the facilities in question were secured by the legal mortgage on the property belonging to the Mr. and Mrs. Adede. They did not state that the property belonged to the Appellant, which was the turning point for the trial Court. That the Appellant has not shown the evidence it called to establish that the title documents mentioned in the said deed belonged to it and not the said Mr. and Mrs. Adede, and that oral evidence cannot be used to contradict documentary evidence vide I.M.N.L. VS. PEGOFOR IND. LTD (2005) 15 NWLR (PT. 947). Further argued that in any event, in view of the gaps contained in CW1’s testimony

in terms of hand over and date, it cannot suffice as proof that the Respondent had custody of the 130807 Deed of Assignment.

It was further argued that the contention of the Appellant that the Deed No: 16/16/2180 in the said facility documents was made in error was not substantiated by any evidence before the trial Court to establish that claim, because no letter was written by any of the parties to acknowledge or rectify the alleged error. Further that CW1 failed to give credible evidence of how and to whom the 130807 Deed of Assignment was handed over to, as such the trial Court was right in not placing any probative value on the evidence of CW1 on the acknowledgment of receipt of the disputed Deed of Assignment attached to exhibit CW1Q, containing only the signature and date but without any name or stamp of the officer involved.

On the claims of special and general damages, the Respondent submitted that the entire case of the Appellant on this claim in relief (d) was built of estimated sale and expected earnings per day which was held by the Supreme Court in U.B.N. Plc. VS. AJABULE (2011) 18 NWLR (PT. 1278) 152 at 174, to the effect that a Court

is not entitled to make an award of special damages based on conjecture or on fluid speculative estimate of alleged loss sustained by the plaintiff in the absence of strict proof by credible evidence. That in this case, the Appellant was unable to prove its entitlement to special damages even assuming that it proved its declaratory reliefs.

On the claim of general damages and cost of unnecessary legal expenses, (reliefs E and H), the Respondent submitted that this claims failed because the Appellant failed to lead credible evidence to establish that the Respondent received and has remained in possession of the 130807 Deed of assignment. Relying on the cases of YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS. (1990) 6 SCNJ 149 at 172, and SMITHKLINE BEECHAM PLC. V. FAREMEX LTD (2010) 1 NWLR (PT. 1175) 285 AT 306, the Respondent submitted that though general damages are presumed by law to be the direct natural consequences of an act complained of, a party has to prove its entitlement to same. It must not be awarded on speculative claims and scanty evidence.

On the claim of the Appellant that it was blacklisted as a bad

debtor in the CBN’s Credit Bureau due to the Respondent’s refusal to admit to the FCMB that it was in possession of the Appellant’s deed of assignment to enable the FCMB liquidate its indebtedness to the Respondent and also grant it further loan facility, the Respondent submitted that the Appellant having failed to present any evidence to establish its declaratory reliefs will make this claim otiose. This is in addition to this claim being extravagant having not been supported by any shred of evidence on the record showing that it applied to any bank in Nigeria for loan and it was refused.
We were urged to dismiss this appeal and affirm the judgment of the trial Court.

APPELLANT’S REPLY BRIEF
The learned counsel for the Appellant responded to the argument of the Respondent wherein it contended that the name of its officer who received the Deed of Assignment in issue was not stated by the CW1 by referring to paragraph 11 of the CW1’s written statement on oath dated 20th January 2016 wherein he stated that one Adesuwa Okuhor who was the Respondent’s Mazamaza Branch at the time received the original deed of

assignment and signed the copy that was attached to exhibits CW1Q, as shown in page 141 of the record of appeal. He relied on this exhibit along with exhibits CW1J, CW1K and CW1L, which showed that the Respondent received and acknowledged receipt of the missing original deed of assignment contrary to its argument.

On the argument of the Respondent that the missing deed of assignment belonged to Mr. and Mrs. Adede and not the Appellant, he referred to the Respondent’s offer letters dated 15th September 2008 (exhibit CW1A) and 11th December 2008 (exhibit CW1B), the latest in time of the three offer letters, in which the Appellant admitted that the property belonged to the Appellant. That CW1 in paragraph 9 of his additional statement on oath (pages 140 to 141 of the record) testified that the Respondent made an error when it described the property in issue as belonging to Mr. and Mrs. Adede (owners of the Appellant), which was corrected in exhibit CW1C, its latest offer letter.

In response to the Respondent’s argument that the Appellant did not lead any evidence to show that it applied for loans from other banks and it was refused, the

Appellant referred to paragraphs 26 (a) to (n) of witness statement of oath of the CW1 wherein he stated the Appellant’s loss of credit worthiness and goodwill and also the details of how and why the Appellant was blacklisted by the CBN on its Credit Bureau. The Appellant also relied on the Zenith Bank Letter dated 18th March 2015 (exhibit CW1F) in which the bank declined Appellant a loan upon the due diligence it conducted that showed the Appellant’s indebtedness to the Respondent, which would have been liquidated by the FCMB, if the Respondent had confirmed being in possession of its title documents. That the CW1 was not cross-examined on this evidence.

On the claim of special damages, the Appellant submitted that contrary to the contention of the Respondent, the Appellant pleaded sufficient particulars in paragraph 23 of its pleading in the form of selling price, cost price, gross profit, expenses and lost of income/profit and this was supported by paragraph 24 of the CW1 statement on oath and exhibit CW1S pleaded in paragraph 9 of its statement of claim. He relied on the case of NEKA BB MFG. CO. LTD VS. A.C.B. LTD (2004) 2 NWLR (PT. 858)

521 AT 539, where the Apex Court held that strict proof does not mean unusual proof, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible.

The Court was urged upon to hold that the evidence and particulars disclosed in exhibit CW1S as well as paragraph 10, 11 and 25 of the CW1’s statement on oath suffice to enable the Respondent understand Appellant’s calculation of the total sum of money claimed as special damages and to reject the argument of the Respondent and allow this appeal.

RESOLUTION
Upon a calm consideration to the issues raised by the parties in their respective briefs of argument, I found that they are actually the same in context because the Respondent’s two issues can conveniently be subsumed in the Appellant’s sole issue for determination. In view of the fact that the Appellant is the undoubted owner of this appeal, I adopt its lone issue as my guide to the determination of this appeal. As a reminder, the Appellant’s issue is giving the Respondent’s

failure to contradict, deny, controvert or challenge all the evidence/testimony adduced by the Appellant through CW1, should the Court below have treated this suit as an undefended suit which entitled the Appellant to the grant of the its claims against the Respondent?

It is not in contention between the parties to this appeal that the Respondent did not proffer evidence in support of its pleading because its witness statement on oath was found by the trial Court to be incompetent and was struck out. This means only the pleadings and evidence of the Appellant were before the trial Court for consideration. It is on this basis that the Appellant insisted that its case was undefended, as such it was entitled to judgment on its claims from the trial Court. On this contention, the Appellant relied and referred us to the cases of MODUPE VS. STATE (supra) and Okoebor Vs. Police Council (supra) and others. These cases did not establish the principle of law that a case, which was not challenged and/or defended will automatically be granted. I find the holding of MUHAMMAD, J.C.A. (as he then was, later J.S.C.) in the case of Okoebor Vs. Police Council (supra) at

page 545 paragraphs A-B particularly relevant to this contention of the Appellant, thus:
Learned Counsel to the Appellant had raised and placed a lot of emphasis on the evidence adduced by the Appellant as plaintiff, which was described as uncontradicted and uncontroverted. It is indeed the law that where the defendant offered no evidence in defence of the claim against him as happened in the instant case, the plaintiff’s evidence before the Court in such circumstances clearly goes one way, with no other evidence to be placed on the proverbial imaginary scale as against such evidence giving by or on behalf of the plaintiff. However, where that happens, it does not mean that the plaintiff is automatically entitled to judgment. The uncontradicted and uncontroverted evidence adduced by the plaintiff must be evaluated and appraised by the trial Judge to determine if it supports the claim of the plaintiff. In other words, in such circumstances the onus of proof placed on the plaintiff is discharged only on the minimal proof…. Therefore in the present case, where the Appellant as the plaintiff had failed to discharge even the onus of minimal proof

required, the lower Court was right to dismiss his claim.
It is therefore settled law that the fact that there was no evidence from the Respondent/defendant does not in any way mean the Appellant is automatically entitled to judgment in its favour as contended. The law requires the trial Judge to examine the pleadings and the evidence placed by the claimant and determine its probative value, which is what is meant by the legal parlance that the claimant has to succeed on the strength of the case he placed before the Court rather than on the weakness of the defence or the fact that there was no defence. The burden of proof on he who asserts, is concerned with the relative strength of the total evidence in relation to the issues in dispute or claims related to the issues.
Though, burden of proof in civil case is not static as in criminal cases, but the claimant has the initial burden to introduce, at least a credible prima facie (minimal) evidence which if not rebutted would entitle it to judgment. The evidence in support of the claims must not only be unchallenged, but it must also be credible and sufficient to sustain the claims. See DURU VS. NWOSU

(1989) 4 NWLR (PT. 96) at 184 (SC), ROCKONOH PROP. CO. LTD VS. NITEL PLC (2001) 14 NWLR (PT. 733) 468 (SC), GREEN FINGERS AGRO-IND. LTD VS. YUSUFU (2003) 12 NWLR (PT. 835) 514 (CA) and ARAB CONSTRUCTION LTD & ANOR. VS. ISAAC (2012) LPELR 9787 (CA).

It is pertinent to state here that though the statement of defence of the Respondent was unsupported by evidence since its witness statement on oath was found to be incompetent and struck out, the Respondent still participated in the trial and indeed vigorously cross-examined the Appellant’s CW1 as can be seen in pages 257 to 259, and 261 to 263 of the record of appeal. It is therefore incorrect to say that the Appellant’s case was completely unchallenged, since evidence elicited through cross-examination runs in pari passu with evidence in chief and in fact, such evidence is more reliable than the evidence in chief as was held by this Court in OBAJIMI & ORS. VS. OLOYE & ANOR. (2017) LPELR- 42709 (CA) relying on the Apex Court’s decision in OFORLETE V. STATE (2000) 3 NSCQR 243 at 268 per ACHIKE JSC, where it was held that cross-examination is a noble art which constitutes a lethal

weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. See also the case of AGBAJE VS. FASHOLA (supra) cited by the Respondent in support of its correct argument that the Appellant’s case was indeed challenged by cross-examination.

In the judgment appealed against, the learned trial Judge considered the documentary evidence placed before him by the Appellant and the oral evidence in form of examination in chief and cross examination of the CW1 as can be seen from pages 318 to 322 of the record. The documents relied upon by the Appellant include exhibits CW1 (a), (b) and (c) which are letters of offers of N8million, N6million and N10million facilities the Respondent granted the Appellant in 2008, and 2011 copied at pages 20 to 31 of the record of appeal. These loans were secured by:
Legal mortgage on a property located at Plot 152 Raymend Iroamaka close by Festac/Amawo Odofin area of Lagos belonging to Mr. and Mrs. Adede and covered by Deed of Assignment registered as No. 16 at page 16 in Volume 2180 of the Land Registry Office Lagos.

The Appellant pleaded in paragraph 5 of its statement

of claim that the property mentioned supra is owned and registered in the name of the Appellant/claimant. CW1 in paragraph 6 of his evidence in chief, contained in his statement on oath dated 21st July 2015 (pages 13 to 18 of the record) also testified that the property was owned and registered in the name of the Appellant. The case of the Appellant is that it handed over the title document registered as 16/16/2180 in its name to the Respondent, which by its claim prayed the trial Court and also this Court to declare was still in the custody of the Respondent and order it to produce same.

However, the Respondent in its letter to FCMB dated 10th September 2014 admitted having in its custody title document securing the Appellant’s latest N10million, a title document registered as 63/63/1989 in the name of one Winifred Augustina Odeinde which FCMB thought was an error as per its letter dated 17th November 2014 (page 56 of the record) because from the information Appellant gave to it the said Winifred Odeinde was the first root title of the property. Meanwhile the deed of assignment registered as 16/16/2180 was between Phillip Kayode Ojo and the Claimant

as per the information given to the FCMB by the Appellant. See FCMB’s letter dated 26th November 2014 to the appellant requesting it to intervene because the Respondent said it did not have the deed of assignment they said it had and this prompted the Appellant’s lawyers’ letter dated 27th November 2014 to the Respondent (copied at page 57 to 59 of the record) demanding the immediate release of the title document registered as 16/16/2180 and not 63/63/1989. The Respondent then requested for the acknowledgment of receipt copy issued to the Appellant in respect of 16/16/2180, which it claimed it deposited with the Respondent.

However, in the Appellant’s lawyers’ reply letter of 19th December 2014 (exhibit CW1Q, page 61 to 62 of the record), they attached a copy of the same deed of assignment registered as 63/63/1989 in the name of Winifred Augustine; copy of deed of assignment dated 13th August 2007 showing the Respondent’s predecessor Intercontinental Bank Plc. ‘acknowledged’ the receipt of the original of that document vide a signature on it and dated 7th February 2008. But the name of the officer and stamp

of the bank was not stated on the document. Again, the copy of this document showed that the deed of assignment was registered as 16/16/2180 between one Phillip Kayode Olusegun Ojo and the Claimant as the registered assignee of the leasehold.

After analyzing these documents, the learned trial Judge found in page 320 of the record that:
The deed of Assignment dated 13th August 2007 is stated to be between Phillips Kayode Olusegun Ojo and the Claimant MCDonald Scientific Emporium whereas the various letters of offer from the defendant to the claimant had as the security the property covered by the Deed of Assignment registered as No. 16/16/2180. The title of the property described in the said letters of offer of the defendant to the claimant is stated to belong to Mr. and Mrs. Adede and not the Claimant on record. This is clearly not in tandem with the contention of the Claimant that the property belong (sic) to the Claimant (Mcdonald Scientific Emporium).

There was no evidence led to explain this material conflict on the evidence of the Appellants vide its documents of offer of loans and the ownership of the property used to secure it or even to

explain who Mr. and Mrs. Adede are. It is not the duty of the Court to fill in the gap created in the case of a party. See the case of W. A. C. C. LTD VS. CAROLINE POULTRY FARMS LTD (2000) 2 NWLR (PT. 644) 197 at 206 paragraphs A-C (CA), where this Court held that:
Where proof of an issue is left in doubt by the plaintiff so that the Court would be required to speculate, the plaintiff on whom the burden ultimately rests must lose. It also follows that where the existence of an essential fact on which a party relies is left in doubt, or uncertainty, the party on whom the burden rests to establish the fact should suffer and not his adversary. Therefore evidence which is equally consistent with two or more conflicting or propositions or with opposing theories or which leads as reasonably to one hypothesis as to another, tends to support neither and such evidence will not support a judgment in favour of the proponent.

Moreover, the trial Court rejected the endorsement of only signature of the officer of the Respondent whom the Appellant said received the original title documents. CW1 stated under cross-examination in page 257 that “I don’t

have anywhere on my statement on oath where I mention the name of any person who gave the title document to the defendant.” This evidence directly contradicted CW1’s evidence in chief in paragraph 12 of the additional witness statement on oath dated 20th January 2016 (pages 139 to 142 of the record), wherein he stated that the Respondent through its Maza Maza branch manager, one Adesuwa Okuhor collected the original deed of assignment.

The Appellant also complained that the trial Court deliberately skirted and failed to pronounce upon most of the argument in the final addresses. On the contrary, I find that the learned trial judge indeed stated the issues raised by the counsel in their respective written addresses and the argument canvassed thereon. He also considered the documents relied upon by the Appellant and decided they were insufficient for the exercise of his discretion to make declaratory orders in the circumstances of this case. The failure to prove the main declaratory reliefs sought means the ancillary reliefs of damages have no basis because damages cannot be awarded in vacuo. The lower Court rightly disregarded them also.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the final analysis, having also examined the said documents with a finery of a toothcomb, I cannot fault the learned trial Judge’s decision. I therefore answer the lone issue in the negative and resolve it against the Appellant. Consequently I find no merit in this appeal and I dismiss it. I affirm the judgment of the High Court of Lagos State delivered on the 27th February 2017 in respect of suit NO; LD/909CML/2015. Parties shall bear their costs of prosecuting this appeal.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance, the draft Judgment of my learned brother, HON. JUSTICE BALKISU BELLO ALIYU, JCA and I am in complete agreement with his reasoning and conclusion.

This Appeal is against the Judgment of the Trial High Court holden at Lagos State delivered on the 27th February, 2017 against the Plaintiff/Appellant (MCDONALD SCIENTIFIC EMPORIUM LTD.) as a customer of the Defendant/Respondent (Access Bank).

It is trite that the law distinguishes between general and special damages. The award of damages generally is dictated by the Latin maxim “restitutio in integruim” which rule is that the plaintiff is

entitled to be placed, so far as money can do it, in the same position as he would have been the agreement had not been breached. In other words, the party so wronged or injured by the breach of an agreement voluntarily entered into, ought to be restored to the status quo ante bellum before the wrong complained of.
General damages had been held to be the natural consequences that flow from the wrongful act of the Defendant. Such damages do not need to be pleaded or strictly proved as the Court can suo motu at its discretion award same after calculating whatever sum of money will be reasonably justified to compensate the Plaintiff for the wrong he or she had suffered in the hands of the Defendant after taking into consideration the facts and circumstances of the case. See S.P.D.C. (Nig.) Ltd. vs. Tiebo VII (2005) 9 NWLR (Pt.931) 439; Mobile Oil Nig. Ltd. vs. Akinfosile (1969) 2 SCNLR 322; Beecham Group vs. Essdee Food Products (Nig.) Ltd. (1985) 3 NWLR (Pt.11) 112; A.G. Oyo State vs. Fairlakes Hotel Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255 and O.M.T. Co. Ltd. vs. Imafidon (2012) 4 NWLR (Pt.1290) page 332.
On the general principles governing the award

of general damages, it was variously held in Taylor vs. Ogheneovo (2012) 13 NWLR (Pt.1316) 46; Garba vs. Kur (2003) 11 NWLR (Pt.831) 280; Ijebu-Ode Local Government vs. Adedeji Balogun & co. Ltd. (1991) 1 NWLR (Pt.166) 136; that in awarding general damages, the Court will be guided by the opinion and judgment of a reasonable man as general damages are loses which flow naturally from the Defendant’s act and that each quantum need not be pleaded or proved as same is generally a presumption of law.
On the other hand, special damages are those that are alleged to have been sustained under special circumstances and must be specifically pleaded along with their particulars and proved to the hilt. In other words, as was held in F.C.N Plc vs. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt.569) 227; Okoronkwo vs. Chukwueke (1992) 1 NWLR (Pt.216) 175; Ngilari vs. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 262; Unilorin Teaching Hospital vs. Abegunde (2015) 3 NWLR (Pt. 1447) 421; Akinkugbe vs. EH. Nig. Ltd. (2008) 11 NWLR (Pt.1098) 375 and NNPC vs. Klifco (Nig.) Ltd. (2011) 10 NWLR (Pt. 1255) 209; strict proof of special damages means that the evidence adduced in proof

thereof must demonstrate particularity in accordance with the pleadings and the claim must also be based upon precise calculation so as to enable the Defendant assess to the facts which informed the calculation. This is because admission by Defendant to special damages does not relieve a Plaintiff from strict proof.
In Attorney-General of Anambra State vs. Attorney-General of the Federation & ors. (2005) All FWLR (Pt.268) 1557, Niki-Tobi, JSC held at page 1607 paragraphs “E” to ‘G” as follows:
“It is elementary law that a plaintiff has the burden to prove the reliefs sought in the statement of claim to obtain judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim, and so the onus probandi rest upon him. He must prove the affirmative content of his statement of claim. Our adjectival law is as strict as that. See Okechukwu & Sons vs. Ndah (1967) NMLR 368; Elemo vs. Omolade (1968) NMLR 359; Frempong II vs. Erempong II (1952) 14 WACA 13; Osawaru vs. Ezeiruka (1978) 6-7 SC 135; Fashanu vs. Adekoya (1974) 6 SC 83. It must be mentioned that the burden of proof is restricted to the

live issues in the matter, that is the issues which will determine the case one way or the other. In other words, a plaintiff has no duty to prove issues which are not in any way related to the Reliefs sought in the statement of claim as such issues are seen as merely gallivanting in the pleadings and to no issue.”

On the whole, it is my candid opinion that the Plaintiff/Appellant did not prove his Claims before the Lower Court on the balance of probabilities and accordingly, he is not entitled to the declaratory Reliefs sought in the Trial Court. Consequently. this Appeal lacks merit and is hereby dismissed. The Judgment of the Trial High Court of Lagos State delivered on the 27th February, 2017 is hereby affirmed.

SAIDU TANKO HUSSAINI, J.C.A.: My lord, Balkisu Bello Aliyu, JCA has availed me with a copy of the judgment just as prepared and delivered by my lord.

The person who seeks a declaratory relief (as in this case on appeal) has no choice but to lead credible evidence and of such quality as will entitle a declaratory order being made in his favour regardless of whether or not the party on the other side contested the claim or called

any evidence. The plaintiff as in this appeal case, the appellant, can only succeed on the strength of his own case. In the case on hand, the appellant failed to discharge the onus on them to prove their case on a preponderance of evidence. I am one with the reasoning and conclusion in the lead judgment that the appeal merits an order of dismissal. I so order.

Appearances:

AYOOLA AJAYI ,ESQ. WITH HIM, SOLOMON OJO, ESQ. For Appellant(s)

OJIBARA ESQ. WITH HIM, J. O. FINANI ESQ. For Respondent(s)