MR IPADEOLA OKESOTO V. TOTAL NIGERIA PLC (2010)

MR IPADEOLA OKESOTO V. TOTAL NIGERIA PLC

(2010)LCN/3644(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of March, 2010

CA/K/222/05

RATIO

EVIDENCE: DUTY OF A COURT IN EVALUATION OF EVIDENCE

It is quite elementary that no court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all courts are to consider only evidence and issues canvassed before it in trying to reach its judgment. Also, a court is entitled to draw inferences from both the claim and evidence that is adduced before it as part of the evaluation of evidence of witnesses. See Fannami V. Bukar (2004) All FWLR (pt 198) 1210 at 1273 para D. It is the act or process of forming an opinion, based on what one has seen and heard or known that constitutes the act of drawing inference. In a court of law, a judge hearing a case has a duty to assess and evaluate the totality of evidence adduced before it. In the process a judge can and is entitled to form an opinion based on i the facts and evidence adduced by both parties. PER JOHN INYANG OKORO, J.C.A.

EVIDENCE: WHEN WILL A SUCESSFUL PLEA OF ALIBI BE SUSTAINED

Let me state that a successful alibi is sustained where it is made at the earliest opportunity available to the appellant and not an afterthought as the Appellant has done in this case. See Christopher Okosi & Anor V. The State (1989) 1 NWLR (pt 100) 642. PER JOHN INYANG OKORO, J.C.A.

APPEAL: CIRCUMSTANCES AN APPEAL COURT WILL EVALUATE EVIDENCE AND MAKE FINDINGS

PLEADINGS: EFFECT OF EVIDENCE NOT LED IN CONFORMITY WITH THE PLEADINGS

JUSTICES

MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

MR IPADEOLA OKESOTO Appellant(s)

AND

TOTAL NIGERIA PLC Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court presided over by Justice Tani Yusuf Hassan, delivered on the 7th day of April, 2005, wherein judgment was entered for the plaintiff/Appellant in part in the sum of N272,090.00. The court however dismissed the remaining portion of the Appellant’s claims before it.
A brief facts of the case are that the Appellant who was the plaintiff at the lower court was an employee of ELF Oil Nigeria Limited which company later merged with Total Nigeria PLC. By virtue of the merger, the company was then known and called Totalfina Elf Nigeria Ltd which company was the defendant at the lower court when the suit was filed. The Appellant was so employed by the Respondent in 1990 after one year of internship. There were cases of fraud and embezzlement in some stations of the Respondent under the supervision of the Appellant. After investigation, the Respondent asked the Appellant to resign. The Appellant resignation from the Respondent’s employment on 21/6/01. The Respondent accepted the Appellant’s letter of resignation and computed the Appellant to be the sum of N1,566,282.45.
The Appellant went to the Respondent’s Office to collect his entitlement but to his surprise, a total sum of N1,294,090.96 was deducted by the Respondent leaving him with a balance of N272,090.49K. The Appellant wrote letters to the Respondent and demanded for justification of the said deductions to no avail. Based on this situation the Appellant filed his suit at the court below asking for the following reliefs as contained in paragraph 26 of his statement of claim:-
“wherefore the plaintiff claims against the defendant the sum of N1,702,696.05K being his full separation/entitlement benefits due to him from the defendant at 21st June, 2001 when he resigned from the Company together with 10% court interest per annum on the said sum of money from 21st June, 2001 until full payment of the money plus the cost of filing and prosecuting this suit”.
At the end of the trial, the lower court dismissed the Appellant’s claims and held inter-alia that the Respondent was justified in the deductions as the Appellant failed to put a defence on why the deductions should not have been made by the Respondent. The learned trial judge however awarded the sum of N272,090.49K with N3,040.00 costs to the Appellant.
Dissatisfied with aspects of the judgment, the Appellant filed Notice of Appeal dated 17/5/05 on the same date. The said notice contains eleven grounds of appeal out of which seven issues have been formulated by the Appellant for the determination of this appeal. The issues are as follows:-
(i) Whether the learned trial judge was justified in making inference that the Appellant was found wanting in the fraud committed by tendering | his letter of resignation and acceptance, of same by the respondent which led to a miscarriage of justice.
(ii) Whether the learned trial judge was justified to have found the Appellant not being honest on the issue of receiving N610,000.00 from the Station Manager which was no longer a life issue in the trial which led to a transparent miscarriage of justice.
(iii) Whether the learned trial judge was justified in law and in fact to have reached the conclusion as he did that the Appellant issued the alleged receipt thereby causing miscarriage of justice.
(iv) Whether the learned trial judge was right in finding as he did that nobody but the plaintiff could have made in lodgments evidenced by Exhibits R1, R2, and R3 because of his promise as contained on Exhibit N which caused great injustice to the Appellant.
(v) Whether having regards to the Appellant’s claims before the lower court and evidence adduced the learned trial judge was right in holding that furniture allowance and un-retired benefits were not issue between the parties as a result of which they were not considered which caused miscarriage of justice.
(vi) Whether having regards to the evidence adduced by the Appellant the learned trial judge was justified in law in finding that the Appellant as plaintiff did not prove his entitlement of N225,911.52K on the NPLC benefits which caused injustice to the Appellant.
(vii) Whether from the state of the pleadings, the evidence adduced by the parties, the learned trial judge was justified in finding that the Respondent was justified in making the deductions, Appellant having failed to put up a defence on why the deduction should not be made which led to a miscarriage of justice.
The learned counsel for the Respondent D.D. Onietan Esq, in the brief prepared by him, has however distilled two issues for the determination of this appeal as follows:-
(i) Whether having regard to the facts and circumstances of this case, the learned trial judge was right in holding that the deductions made by the Respondent from the Appellants’ severance entitlements were proper
(n) Whether having regard to the holding of the learned trial Judge that the deductions made from the Appellants’ severance entitlements were proper, the issue of Housing and furniture Allowances could still be said to be live in this matter to warrant any special consideration or treatment by the trial court.
Although the Respondent’s counsel formulated two issues, he however replied to the seven issues as argued by the Appellant. I shall therefore determine this appeal based on the seven issues formulated by the Appellant
On the first issue, the learned counsel for the Appellant, O.A. Dada Esq, submitted that there was no joinder of issue between the Appellant and the Respondent as to the reason why the Appellant tendered his letter of resignation and acceptance of same by the respondent. That since there was no joinder of issues on the reason why the Appellant tendered his letter of resignation which was accepted by the Respondent, and because there was no iota of evidence from the two defence witnesses to the effect that the Appellant was found wanting in the fraud episode hence the decision of the Defendant to ask him to resign, the learned trial judge was wrong to have made the inference under discussions in this issue. Relying on the case of Fannami v. Bukar (2004) All FWLR (pt 198) 1210 at 1273 para D, learned counsel concluded that the law is settled that a trial court or an appellate court can only draw inference from the claim and evidence brought before it and that the wrong inference drawn by the trial court affected the mind of the court against the Appellant. He urged this court to allow this appeal on this issue.
In the brief filed by D.D. Onietan Esq on behalf of the Respondent, a reply to the first issue is to the effect that the evidence on record shows that certain monies were recovered from the Appellant apart from the lodgments he made into some of the accounts (in Gumel) to reduce the debit on that account. Learned counsel asked whether it would be wrong for any reasonable person to infer that the person from whom certain amount was recovered and who by himself, voluntarily made lodgments to reduce the debit discovered in the account could be wanting in respect of such anomaly. He submitted that there is sufficient evidence on record to allow for such inference as made by the learned trial judge. For instance, he submitted further, the account of a particular station which was supposed to be a “cash and carry” station was in debit to the tune of N1,480,459.51K and when asked as the person in charge, all the Appellant said was.-
“The account will be reconciled to correct the anomalies that led to the debit balance of N1,480,459.51k as at 4/5/01”.
Furthermore, that all of a sudden the Appellant started making lodgments into that account as follows – N600,000 = N500,000 = N140,520 =, N160,000 = vide Exhibits R1, R2 and R3. Learned counsel further submits that on another occasion where certain receipts were issued in spurious circumstances which led to loss of funds, the Appellant asked to explain and all he could say was –
“Ref- Re – Receipt of N693,000 into A/C 350284. I may not be able to make any categorical statement in respect of the said receipt”
Submitting that the learned trial judge was right in the circumstance to draw the inference, the learned counsel drew the attention of the court to exhibit Q2 adding that the Appellant was in charge of the said station in question and his later statement that he was in Gusau on that date was an after thought as he had all the opportunity in the world to say so at the earliest opportunity but he failed to do so. He urged this court to resolve this issue against the Appellant.
On page 153, paragraph 2 of the record of proceedings the learned trial judge in his judgment stated inter alia as follows –
“……..Although PW1, the plaintiff in this case did not categorically come out to say that he was involved in the fraud committed, but the decision taken by the defendant by asking the plaintiff to resign, it can be inferred that the plaintiff was found wanting, hence the decision to ask him to resign which he also did not resist, but complied by tendering his resignation letter”.
This is the part of the judgment which the Appellant is contesting. The Appellant is saying here that the inference drawn by the court below is not borne out of the claim and evidence before the court. It is quite elementary that no court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all courts are to consider only evidence and issues canvassed before it in trying to reach its judgment. Also, a court is entitled to draw inferences from both the claim and evidence that is adduced before it as part of the evaluation of evidence of witnesses. See Fannami V. Bukar (2004) All FWLR (pt 198) 1210 at 1273 para D. It is the act or process of forming an opinion, based on what one has seen and heard or known that constitutes the act of drawing inference. In a court of law, a judge hearing a case has a duty to assess and evaluate the totality of evidence adduced before it. In the process a judge can and is entitled to form an opinion based on i the facts and evidence adduced by both parties.
In the instant appeal the learned trial judge held that the Appellant was found wanting in the Respondent’s place of work based on the evidence before the court. What are these evidence? The first relates to Exhibit Q1 and Q2. When the Appellant was queried in Exhibit QI to explain his role in the receipt of the sum of N693,000= the Appellant’s only reply in Exhibit Q2 is as follows”-
“Ref Re Receipt of N693,000 = into A/C 350284 I may not be able to make any categorical statement in respect of the said receipt”
It must be noted that the Appellant was in charge of the station where this fraud was uncovered and yet he could not make a “categorical statement” in respect of the said receipt. Quite unfortunate.
Again, on page 156 of the Record which contains part of the judgment below, the learned trial judge has findings:-
“When the plaintiff was notified balance at Gumel station, he promised to rectify it as indicated in his response Exhibit N. As a result of which he made series of lodgment as contained in Exhibits R1, R2 and R3 which reduced the debit balance to N71,939.51K from N1,480,459.51K from the plaintiff’s response in Exhibit N where he promised to rectify the account, nobody else could have made the lodgments but the plaintiff himself”.
The issue in Exhibit N was a reply to query vide Exhibit M. When asked to explained why there should be debit balance of N1,480,459.51 in Gumel Organic Station under his control, he replied in Exhibit N as follows:-
“The account will be reconciled to correct the anomalies that led to debit balance of N1,480,459.51 as at 04/05/01”.
I think in the face of all these pieces of evidence, the learned trial judge was right to infer that, the Appellant was indeed wanting in the discharge of his official functions. It is therefore unfair of the learned counsel for the Appellant to say that the learned trial Judge made the inference without being based on the facts or evidence before him. In the circumstance therefore, this issue is resolved against the Appellant.
Issue number two has to do with the findings of the learned trial judge on pages 153 to 154 of the record of appeal wherein he states as follows.-
“Under cross – examination Dw1 said the plaintiff stated in his response to the Audit Quarry (sic) that he received the sum of N610,000.00 from the station manager, The defence put up by the plaintiff on this allegation is that he never t received N610,000.00 and N500,000.00 and no recovery was made from him. But in paragraph 4 of Exhibit C which is the plaintiff’s response to the Audit quarry (sic), the plaintiff stated that the station manager promised to advance him the sum of N610,000.00 to get a car of his choice and repay the loan at his convenience. In paragraph 6 of the same Exhibit C plaintiff stated that when he wanted to refund the money to the station manager, he was at large. The plaintiff in this case is not being honest when he denied receiving the sum of N610,000.00 from the station manager”
The above finding of the learned trial judge is what the learned counsel for the Appellants submits is an academic exercise and not a live issue in the case citing and relying on the cases of David West V. Oduwole (2003) FWLR (pt 163) 146, Titilayo V. Olupo (1991) 7 NWLR (pt 245) 519 and Badejo Vs Federal Ministry of Education (1996) 8 NWLR (pt 464) 15.
However, the learned counsel for the Respondent, after referring to several pieces of evidence on the record submitted that from the empirical evidence on record, the learned trial judge was justified to have found the Appellant not being honest on the issue of receiving N610,000.00 from the station manager.
Where a court is asked to research and pronounce upon an issue which will not confer any benefit on any of the parties and which has no bearing to the issues in the case, such exercise is just an academic exercise and the courts have no time to engage in such exercises. See Bedejo V. Federal Ministry of Education (Supra), Eperokun v. University of Lagos (1986) 4 NWLR (pt 34) 162.
As was rightly submitted by the learned counsel for the Respondent, the findings of the learned trial judge complained of does not by any stretch of the imagination amount to an academic exercise. Rather it is his findings in the course of evaluation of evidence.
It is the Appellant who made Exhibit C in reply to a query in Exhibit B. In Exhibit C the appellant had admitted receiving the sum of N610,000 00 from the station manager to buy a car of his choice and to refund the said sum at his convenience. Also that when he wanted to refund the money to the Station Manager, he was at large. However, the Appellant somersaulted in his evidence before the court on page 124 of the record where he stated on line 7 as follows.-
“I did not receive the sum of N610,000.00 from the Station Manager”.
If this was not a life issue, why did he give evidence on it and why did he tender Exhibit C? The learned trial judge after seeing the appellant giving these contradictory evidence held that the appellant was not honest when he denied receiving the sum of N610,000 00 from the station manager. What is an academic exercise here? Definitely, there is none The Appellant cannot be allowed to approbate and reprobate as he has done See Tawakalitu Bakare v. Alh. Sikiru Aremu Jenmi (1991) 2 NWLR (pt.175) 590 at 600 paras E – H. I accordingly hold that issue two does not avail him at all.
I shall resolve issues three and four together as they are interrelated. The question is whether the court below was right to hold that the Appellant made exhibit U and the lodgments in Exhibits R1, R2 and R3. On Exhibit U (i e issue 3) the learned counsel for the Appellant submitted that having regards to the state of the parties pleadings before the lower court and evidence adduced by the parties, the learned trial judge had no justification in fact and in law to have concluded that it was the Appellant that issued the offensive receipt dated 31st January, 2001 i e Exhibit U contained at page 110 of the record of proceedings. That since the Appellant had pleaded and testified that he was in Gusau on the date the receipt was issued, it was unlikely that he issued the receipt as held by the learned trial judge Also, that being issue of fraud, it ought to be proved beyond reasonable doubt citing and relying on the cases of Zein Vs Geidam (2004) All FWLR (pt 237) 457 and Onafowokan V. Idowu (1969) All NLR page 125.
Finally that the Respondent failed to prove that the said receipt was signed by the appellant, or that it was the password of the Appellant that was used to issue the receipt Further, that the Gumel Station Dealer was not called as a witness and that no document was produced before the court by the Respondent’s witnesses through which the Appellant lifted products of the Respondent vide the payments in the said fake receipt. He cited some cases to buttress his argument including Omega Bank Nig. PLC V. O.B.C Ltd (2005) All FWLR (pt 249) 1964, Ojo V. Adejobi (1978) NSCC Vol. 2 p. 161 and State V- Usman (2004) All FWLR (pt 226) 231.
As regards issue four, the learned counsel for the Appellant submits that there is nothing in Exhibit N to suggest that the Appellant was the person that paid money into the account as evidenced by Exhibits R1, R2 and R3 contrary to the decision of the learned trial judge on the issue He further! submits that the learned trial judge made mistake ‘by interpreting reconciliation to mean rectification and that in accounting practice reconciliation of account cannot by any stretch of imagination be interpreted to mean admission by the Appellant to rectify same by making payments into the account. Finally, it was submitted that a careful perusal of the contents of Exhibits R1, R2 and R3 shows clearly that the name of the Depositor is ELF Gumel and not the Appellant. Learned Counsel urged the court to resolve these issues in favour of the Appellant.
It was the contention of the learned counsel for the Respondent that the trial court was absolutely justified both in law and in fact, having regard to the circumstances of this case, to have reached the conclusion it reached that the Appellant issued Exhibit U. The further contention of the Respondent is that the Appellant failed to give explanation to Exhibit U when he was queried but was able to tell the court about 3 1/2 years thereafter that he was in Gusau on the date the receipt was issued and that he could not have issued same He submitted that his defence is an after thought and should be rejected.
On issue 4, he submitted that since Exhibit M emanated from the Audit Manager of the Respondent and addressed to the Appellant, and the Appellant was the person who made the undertaking in Exhibit N that the account of Gumel Station would be reconciled, then when eventually some lodgments were made into the account to, “correct the anomalies”, it was right for the court below to hold that it was the Appellant who made the lodgments. Furthermore, it was contended that should not be allowed to say that since his name was not on Exhibits R1, R2 and R3 he should not be held responsible for it. That the era of technicalities is over. He relies on the cases of Anason Farms Ltd. v. NAL Merchant Bank (1994) 3 NWLR (Pt.331) 241, Tukurwa v. Kwa-kwa (1992) NWLR (Pt.224) 449.
And finally, that it is not (sufficient for the Appellant in the circumstance of Exhibits M and N to simply deny in his oral evidence making the lodgments into the Gumel account. That the Appellant must be privy to the new reconciled position of that same account he gave an undertaking to correct. He urged the court to resolve these issues against the Appellant.
Let me start by considering issue three which relates to the issuance of Exhibit U. Straight away, I agree with the submission of learned counsel for the Respondent that the Appellant’s attempt to deny being privy to Exhibit U is, in the face of Exhibit Q2, an afterthought which is now belated. In Exhibit Q1 which is an internal memo of the Respondent, a form of a query was addressed to the Appellant on the 16th May, 2001 by the Respondent’s internal Auditor concerning Exhibit U, calling for some explanation on certain alleged lodgment. The exhibit reads:-
“During the Regional credit control review for the month of May, 2001, we noticed a receipt of N693,000 raised by you on 31/01/2001, (No. 38433) into A/C 350284. The receipt turned out to be unauthorised as their (sic) was neither money in the Bank not (sic) letter to back up such receipt.
Could you explain why disciplinary action should not be taken against you for the reasons-
– fake lodgment
– unauthorised trading with customer’s account
-manipulation of figures in the customers accounts”.
In Exhibit Q2 which is the Appellant’s reply to this query, he states’-
“Ref. Re-Receipt of N693,000.00 into A/C 350284. I may not be able to made any categorical statement in respect of the said receipt”.
That was the Appellant’s reply or defence to such a serious and damaging accusation. I am of the view that an innocent person confronted with this type of query, and who was not privy to the fake lodgment, unauthorised trading or manipulation of figures on customers account, will, in his reply to this Audit query, immediately debunk the allegation and offer reasonable and plausible explanation as to the circumstances giving rise to the receipt or the lodgment especially at a station under his control and supervision I agree with the submission of learned counsel for the Respondent that if the Appellant knew nothing about Exhibit U, he should have immediately and at the very first opportunity i.e when replying to the query, invited the Auditor to go through the account together with him. The Appellant aid nothing of sort All he did was to send a one sentence reply which never answered the allegation nor offered any defence to the query. Any wonder therefore that the court below held that the Appellant was the one who issued the receipt?.
I note that at the hearing, before the lower court, the Appellant tried to set up an alibi by saying that he was at Gusau on the date in question It is instructure that this alibi comes about 3 1/2 years after he made exhibit Q2 The question is, as between when he made exhibit Q2 i.e about 4 months after Exhibit U was made in 2001 and the year 2004 when he gave evidence before the lower court, when would the Appellant could have remembered where he was on the date Exhibit U was made Let me state that a successful alibi is sustained where it is made at the earliest opportunity available to the appellant and not an afterthought as the Appellant has done in this case. See Christopher Okosi & Anor V. The State (1989) 1 NWLR (pt 100) 642. I think the learned trial judge, based on the evidence be ore him, was right to hold that the Appellant made Exhibit U.
Now the fourth issues take the same pattern like issue three just considered here, the Appellant is querying the decision of the learned trial judge that nobody else other than the Appellant could have made lodgments evidenced by Exhibits R1, R2 and R3 because of the Appellant’s statement in Exhibit N.
Again the Auditor of the Respondent wrote Exhibit M to the Appellant as follows.-
“SUBJECT: RE: DEBIT BALANCE-GUMEL ORGANIC STATION –
With reference to the above subject matter, you are hereby requested to explain the following-
1. Why the above named station being a cash and carry customer should have a debit balance of N1,480,459.51 as at 04 May 2001?
2. That you are responsible for keeping and updating of this station account, how were you able to accumulate this debt and bypass the system automated credit control?
3. The customer claimed his account should be in credit
4. Based on item nos 1 to 3 above, you are to explain why disciplinary action should not be taken against you for fraudulent use of customer’s account?
Your response must react) the undersigned on or before Monday, 7 May, 2001”
To the above query, the Appellant made the following representation as contained in Exhibit N:-
“SUBJECT- RE: DEBIT BALANCE GUMEL ORGANIC STATION
Above subject matter referred.
My explanations are –
1 The account will be reconciled to correct the anomalies that led to the Debit balance of N1,480,459.51 as at 04/05/01.
2. My password in the system does not allow me to bypass the system’s automated control and accumulate debt on station’s account.
3. The reconciliation exercise will determine the position of the account.
4. The above explanations show that the customer’s account was not being fraudulently used and therefore disciplinary action should not be taken against me.”
That was it Just after making an undertaking to reconcile the account which was in debt, certain monies were paid into that account as evidenced in Exhibits R1, R2 and R3 thus – N6,000,000, N500,000=, N140,520 and N160,000=. The big question is, who made these payments’? The learned trial judge held it was the Appellant. Learned counsel for the Appellant had submitted that the undertaking by the appellant to “reconcile” the account does not mean to rectify the account. For me I think whether it was to reconcile or rectify, it means one and the same thing. The account was in debit and was, supposed to be a cash and carry account. Over one million naira was missing. When the appellant was asked to explain the circumstances which led to the account being in debit, he merely said he would reconcile it. Thereafter, certain payments were made into the account vide Exhibits R1, R2 and R3. I quite agree with the court below that it was the Appellant and no other person who paid these monies into that account to “re concile” it. This is so because there can be no smoke without fire. Moresq, cause follows events. The argument by the Appellant’s counsel that since the name of the Appellant was not on Exhibit R series but that of ELF GUMEL or F GUMEL, he should not be held to be the one who paid in the monies, did not impress me at all As was rightly pointed out by the learned counsel for the respondent, it is common knowledge that money can be paid into a man’s account by somebody other than the holder of that account using a third party’s name on the teller It is the withdrawal of that money that cannot be done by any body other than the holder of that account. On the whole, I have no reason to fault the finding and decision of the learned trial judge that it was the Appellant and no one else who made the Exhibits R1, R2 and R3. This issue is also resolved against the Appellant.
On page 157 of the record of proceedings, part of the judgment of the lower court reads:-
“On the issue of housing, furniture and unretired benefit, the contention of the plaintiff is with regards to the housing allowance, to have paid to the landlord.
But the furniture allowance and unretired benefits are not issue between the parties. I therefore do not consider them issues for determination in this case”. (italics mine for emphasis)
Based on the above decision of the court below, the Appellant submits in issue five that the learned trial judge was wrong because issues were joined by the parties on the said head of claims, adding that a court of law is bound to consider all issues duly joined by the parties and make findings thereon relying on the case of Sanni Vs Ademiluyi (2003) FWLR (pt 146) 959. He further submits that where there is a complaint of non evaluation of evidence by the trial court, in respect of issues properly joined by parties, the court of appeal has the power land jurisdiction to evaluate such evidence on the claim, make findings and reach a decision thereon relying on the case of Etatuku V. NBC PLC (2005) All FWLR (pt 261) 353. He then urged this court to resolve this issue in favour of the Appellant by holding that the respondent failed to justify the deductions of furniture grant and unretired staff advance from the Appellant’s entitlements.
Learned counsel for the Respondent submitted that the issue of furniture allowance was not an issue between the parties in that the Appellant by his evidence on page 126 of the record told the court that what was deducted from his furniture allowance was for the remaining period when he left the service of the Respondent. On the issue of unretired benefit, learned counsel submitted that’ the Respondent through Dw1 gave evidence on page 130 of the record when he said that the sum of N19,580.00k deducted was for staff advance. Moreover, that the Respondent was entitled to make the deductions since the Appellant received these monies in advance but left service without completing those years for which the monies were paid.
I have noted from the record that both the Appellant and Respondent gave evidence in respect of furniture and unretired benefits or what is otherwise called staff advance. I also note that both of them mentioned these items in the pleadings. It was therefore incumbent on the court below to consider these issues and pronounce upon them. The court below held that there was no need to consider them. I do not think so. The learned trial judge failed in his duty to evaluate and/or consider the evidence of the Appellant in respect of housing, furniture and unretired benefits

It is trite that where the trial court fails to evaluate evidence adduced before it, the court of appeal has the power and jurisdiction to evaluate same, make findings and reach a decision thereon. See Etatuku V. NBC PLC (Supra), Zenon Petroleum & Gas V. Idrisiyya Ltd (2006) 8 NWLR (pt 982) 221, Gbadamosi V. Gov. Oyo State (2006) 13 NWLR (pt 997) 363.
I shall embark on that exercise now. On page 126 of the record, the Appellant gave evidence as follows:
“I was paid housing allowance for one year which I paid to the landlord and if I leave service before the year runs (sic) I cannot go back to the landlord for the recovery of the balance because it is my entitlement for the year. The furniture allowance was for four years and what was deducted was for remaining period when I left the service”.
On pages 130 of the record, the DW1 gave evidence as follows.
“From Exhibit E the plaintiff’s entitlement is N1,566,181.51k. Deductions made were housing – N154,053.95k, Furniture grant – N13.500.00k, staff advance – N19,580.00k”
From the above state of evidence on the issue, the Appellant had stated clearly that the housing allowance was paid to his landlord as rent and that he was not expected to go and recover same. Learned counsel for the Respondent submitted that the Respondent was entitled to recover the money for the period he did not work for the company. The same argument was made in respect of further allowance. I however take a different stand on this. The Appellant was paid rent and furniture allowances. It was not a loan which can be recovered. Therefore, it was wrong for the company to deduct both rent and furniture allowances paid to the Appellant and subsequently used to rent a house and to purchase furniture. It is my view that the sum of N154,053.95K and N13,500= deducted by the Respondents for rent and furniture respectively shall be refunded to the Appellant. Even though the Appellant left the services of the Respondent in questionable circumstances, he should not be asked to vomit even the food he ate while working for the company The same however cannot be said of the sum of N19,850.00k deducted as staff advance. It was an advance payment made to the Appellant and I think the company was right to recover same. Had the lower court considered the evidence on this issue, it would not have come to the conclusion it did. The Respondent shall in the circumstance pay to the Appellant the amounts in respect of housing and furniture aforesaid. This issue, accordingly, avails the Appellant in part.
On page 157 of the record, the learned trial judge held, concerning the NLPC benefit claimed by the Appellant as follows
“On the NLPC benefits, the plaintiff has not established before the court how he arrived at the figure of N255,911.52K”
To the above decision of the court below, the learned counsel for the Appellant in issue No 6 submitted that the learned trial judge was wrong in that decision. He gives as reason for saying so on the fact that in the course of trial, the Appellant had tendered Exhibit F without any objection by the Respondent, and the said Exhibit F is a memo by the Respondent to the Appellant dated 28/2/01 which also had an insurance certificate attached to it showing the Appellants’ entitlement as at December 1999 to be the sum of N174,928.21K Again that the Appellant gave unchallenged evidence that between December 1999 and June 2001 when he left service, he must have earned an additional income totaling about N80,983.31K He submits further that the Respondent neither cross examined the Appellant on this evidence nor gave a contrary evidence on the matter. He urged this court to hold that the Appellant had proved this head of claim on the balance of probability relying on the case of Yatama v. Jalomi (2003) FWLR (pt 181) 1682.
The learned counsel for the Respondent replied on three fronts. First, that the ground of appeal is attacking a judgment not delivered by the lower court in that whereas the figure which the court said was not proved in N255,811.52k, the ground of appeal relates to a figure of N225,911.52k. Thus, that both the ground of appeal and the issue formulated therefrom including the arguments therein should be struck out He cites and relies on the case of Altalia & Anor vs Asin & Ors (1999) 5 NWLR (pt 601) 32. Hon. Minister for Works & Housing v. Thomas Nig. Ltd (2002) 2 NWLR (pt 752) 740 at 778 paras E – F Nnanna & Ors v. Onyenakuchi & Ors (2000) 5 NWLR (pt 689) 92.
Secondly, he submitted that apart from the ipse dixit of the Appellant in his evidence, no reference was made to the sum of N80,983.31k in the Appellants’ pleadings That evidence led on facts not pleaded go to no issue relying on the case of Tsokwa Oil & Marketing Co. Nig. Ltd v. UTC Nig. PLC (2002) 12 NWLR (pt 782) 437.
Thirdly, that since the Appellant’s claim is for loss of earning or income which is in the realm of special damages, it ought to have been specifically pleaded and strictly proved. He contended that the failure of the Appellant to specifically plead and prove this head of claim is fatal to his case and that the court below was right to so hold Learned counsel relies on the case of Benin Rubber Producers Co-operative Marketing Union Ltd v. Ojo & Anor (1997) 9 NWLR (pt 521) 388. He urged the court to resolve this issue against the Appellant.
There is no doubt that the evidence of the Appellant on this head of claim was not challenged by, the Respondents at all Ordinarily, this court would, have held that the Appellant had proved his claim, before the court below as it is well settled that facts admitted need not be proved.

See section 75 of the I Evidence Act and the case of Total Nigeria PLC v. Muktah (2003) FWLR (pt 148) 1343. However, before such evidence can be accepted by the court, it must be pleaded by the person giving evidence on it. This is so because once pleadings are ordered, filed and exchanged, the parties are bound by their pleadings so filed.

Therefore, evidence must be led in accordance with the pleadings. Where evidence is led not in conformity with the pleadings and upon facts pleaded, such evidence goes to no issue. See Tsokwa Oil & Marketing Co. Nig. Ltd is UTC Nig. PLC (supra).
In the instant case there is nowhere the Appellant pleaded the sum of N80,983.31k. Therefore, the evidence led on the matter goes to no issue. Quite, apart from that, the said amount, as was submitted by learned counsel for the Respondent is a claim for loss of earning or income which is clearly in the realm of special damages. The Apex court has held and stated that such a claim must be specifically pleaded and strictly proved. In Benin Rubber Producers Co-operative Marketing Union Ltd V. Ojo & Anor (1997) 9 NWLR (pt 521) 388 at 410 para F – G, the Supreme Court, per Iguh, JSC states as follows:-
“Strictly speaking, any claim for loss of earnings is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleadings of his rate of earning and of such other facts as may be necessary to enable the court to calculate as best as accurately as it can, the actual amount of the plaintiff’s loss”
In the instant appeal, the Appellant failed to specifically plead the said amount with particulars since it is a claim for loss of earning as it were. The mere fact that he gave an unchallenged evidence on the matter does not change the situation. The mere ipse dixit by the appellant is not a proof in law and the inability of the party on the other side to challenge the ipse dixit does not turn his evidence so made into strict proof. See Ohaduagh v. Garba & Anor (2000) 14 NWLR (pt 687) 226. In determining this issue, I did not consider the issue of N255,911.52K and N225,911.52K as a very serious matter. Rather I consider the argument as a mere technicality. Courts have since departed from the shore of technicality and I think it is for good. See Tukurwa V. Kwakwa (1992) NWLR (pt 224) 449. Courts are now more focused in doing substantial justice rather than looking for loopholes to kill a case. Be that as it may the Appellant in this case failed to plead and prove how he came about the sum of N80,983.31k and I think the court below was right in holding that the said claim was not proved. This issue, in my opinion does not avail the Appellant
The seventh issue appears to be a compendium of all the issues already resolved by me. This is much more so as both parties keep referring to their earlier argument on issues already treated. I do not have any new things to say on them other than such as I have said already. The Appellant was given opportunity to defend the loses incurred by the Respondent while he was in charge of those stations where huge sums of money were missing. The appellant failed to grab those opportunities but treated them with levity as seen in this case. He would either reply that he would reconcile the accounts or that he is unable to say whether he was involved or not. Such an attitude, in my opinion points to an irresistible conclusion that the Appellant as was rightly held by the court below, was not honest with his employer. I agree with the court below that the Respondent was right to deduct the monies so deducted from his entitlements to defray the loss incurred as a result of the fraudulent practices that charatensed the Appellant’s tenure at the Respondent’s office. I have however decided that the deductions made on housing and furniture be refunded to the Appellant for the reasons earlier expounded.
The sum total of all I have endeavoured to say so far is that in addition to the sum of N272,090.00k awarded the Appellant by the lower court as balance of his terminal benefit, I also order that the sum of N154,053.95K and N13,500.00 deducted by the Respondent for housing and furniture allowance be refunded to the Appellant. Quite apart from that, I uphold the judgment of the lower court on other issues. Parties to bear their respective costs.

MOHAMMED LAWAL OARRA, J.C.A: After reading a draft of the lead judgment written by my learned brother OKORO, JCA, I find myself m agreement with the reasons for the conclusion that the Appellant is entitled to the refund of the sums deducted by the Respondent as housing and furniture allowances from his retirement benefit. Because the sums were paid to him as allowances to which he was entitled as an employee of the Respondent they are not recover ale by the Respondent merely because the Appellant left the employment by way of voluntary retirement which was accepted unconditionaliy by the Respondent.
For the reasons set out in the lead judgment which I adopt, apart from the above, I join in dismissing the appeal in the larger part in terms of the lead judgment.

THERESA N. ORJI-ABADUA, J.C.A: I agree.

Appearances

O.A DADA EsqFor Appellant

AND

KAYODE AMODU EsqFor Respondent