NDPHC, NIPP v. HULA (2021)

NDPHC, NIPP v. HULA

(2021)LCN/15193(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, May 11, 2021

CA/MK/223/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

NIGER DELTA POWER HOLDING COMPANY OF NIGERIA, NATIONAL INTEGRATED POWER PROJECT (NIPP) APPELANT(S)

And

AKAANGEE HULA (Suing For And On Behalf Of The Hula Nyam Ubur, Mayange Nyam And Atim Atongo Family Of Mbazu) RESPONDENT(S)

RATIO

WHETHER THE RELIEF SOUGHT IN A REPRESENTATIVE ACTION BY ITS NATURE MUST BE BENEFICIAL TO ALL THE PERSONS SOUGHT TO BE REPRESENTED; WHETHER PARTIES ON RECORD AND THOSE THEY REPRESENT MUST HAVE COMMON INTEREST.

… the nature of a representative action is such that given a common interest and grievance, a representative Suit is said to be appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See OGAMIOBA V. OGHENE (1961) 1 ALL NLR 441. Meanwhile, the underlying jurisprudential postulate entrenched in a representative capacity Suit is that, the person or persons suing in a representative capacity must have the same interest in the proceedings. The implication of the above is that, parties on record and those they represent must have common interest. See the case of ADELEKE V. ANIKE (2006) 16 NWLR (PT. 1004) 162. Thus, the subject matter must evince a common interest as opposed to diverse interests, common grievance and reliefs sought must in their nature, be beneficial to all the representatives and those represented as in the instant case. See the authorities of ADEDIRAN & ANOR VS. INTERLAND TRANSPORT LTD (1991) 9 NWLR (214) 155; (1991) LPELR-88; ELIJAH IDISE & ORS VS. WILLIAMS INTERNATIONAL LTD (1995) 1 NWLR (PT. 370) 142; (1995) SCNJ 120; (1995) LPELR-1424. PER IGNATIUS IGWE AGUBE, J.C.A.

REQUIREMENTS OF THE LAW FOR SUING IN A REPRESENTATIVE CAPACITY

The Erudite Law Lord of the Apex Court, ONNOGHEN, CJN (as he then was) at page 13, paras. B-E in the case of CHIEF UGBOR OFIA & ORS V. CHIEF ISAIAH MBA EJEM & ORS (2006) LPELR-2266 (SC); has this to say on the requirements for suing in a representative capacity as follows: “…this Court listed the essential requirements for people who desire to sue in representative capacity to include the following: (1) there must be numerous persons interested in the case or the side to be represented. (2) All those interested must have the same interest in the Suit, that is their interest must be joint and several. (3) All of them must have the same grievance. (4) The proposed representative must be one of them and (5) The relief sought must be in its nature beneficial to all persons being represented.” See also the case of OLATUNJI V. REGISTRAR OF COOPERATIVE SOCIETIES (1968) NMLR. PER IGNATIUS IGWE AGUBE, J.C.A.

ON WHOM RESTS THE BURDEN OF PROVING THE NATURE OF COMMON INTEREST IN A REPRESENTATIVE CAPACITY

In determining the nature of the Respondent’s common interest, recourse shall first be made to his Pleadings for the legal burden is placed on him to prove the existence of his common interest. See Section 131 of the Evidence Act, 2011 and the case of MBANEFO V. AGBU & ANOR (2014) LPELR-22147 (SC); where the Apex Court per KEKERE-EKUN, JSC at page 51, paras. B-D opined that: “The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that the facts exist. It is also trite that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumptions that may arise on the Pleadings. See Section 131, 132 and 133 of the Evidence Act 2011, as amended…” PER IGNATIUS IGWE AGUBE, J.C.A.

IMPORTANCE OF CROSS EXAMINATION TO EVIDENCE PROCURED DURING EXAMINATION-IN-CHIEF

… the Supreme Court per TOBI, JSC in BUHARI V. INEC (2008) 19 NWLR (1120) 246 at 415 para B, para.392. C held that: “Cross-examination plays a vital role in the truth searching process of evidence procured by examination-in-chief. It relates to authenticity or veracity of the witness, a Court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination. In view of the fact that cross-examination plays a vital role in the determination of the weight to be attached to a document under Section 92, and a person who did not make the document is not in position to answer questions on it.” PER IGNATIUS IGWE AGUBE, J.C.A.

EFFECT OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION

NGWUTA, JSC (of blessed memory) in PIUS V. THE STATE (2015) LPELR-24446 (SC) said: “Evidence elicited under cross-examination, if it relates to a fact in Issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination in-chief. See GAJI V. PAYE (2003) 8 NWLR (PT. 892) 114.” PER IGNATIUS IGWE AGUBE, J.C.A.

POSITION OF THE LAW REGARDING THE NATURE OF PLEADINGS OF THE PARTIES

The Courts have stated over and over that in an action fought on Pleadings, the very foundation is the Pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his Claim or Defence as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and pleadings operate to define and delimit with clarity the real issues in controversy between the parties. Consequently, it is the law that all material facts that must sustain a party’s case must be pleaded. .PER IGNATIUS IGWE AGUBE, J.C.A.

WHETHER PARTIES CAN RAISE ISSUES OF FACT THAT WERE NOT PLEADED

The Apex Court in the case of OBA E. A. IPINLAIYE II V. CHIEF JULIUS OLUKOTUN (1996) LPELR-1532 (SC) held that: “It is a cardinal rule of pleadings that for material fact to be admissible in evidence, it must be pleaded. As a result, neither party will be allowed to raise at the trial of a Suit, an Issue of fact which he has not pleaded…” PER IGNATIUS IGWE AGUBE, J.C.A.

WHETHER A PARTY MUST PLEAD FACTS TO BE SUPPORTED WITH EVIDENCE

The law is trite that a party is expected to plead raw facts on which evidence would be built on. Howbeit, a single fact or line of facts can form necessary frame work to erect a huge structure of evidence on which a case can be established just as in the instant case. See the case of AJIBULU V. AJAYI (2013) LPELR-21860 (SC). PER IGNATIUS IGWE AGUBE, J.C.A.

NATURE OF SPECIAL DAMAGES

Special damages are those damages which are given in respect of any consequence reasonably arising from the breach complained of. They impute pecuniary losses which have crystallized in terms of cash and values before trial. Such damages must be specifically pleaded and proved strictly. What is required to establish special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence of such a character as would suggest that he is indeed entitled to an award under that head. The Supreme Court in the case of KOPEK CONSTRUCTION LTD. V. JOHNSON KOLEOLA EKISOLA (2010) LPELR-1703 (SC); has this to say on the nature of special damages thus: “Special damages are those damages which are the actual but not the necessary result of the injury complained of and which in fact, follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions. See SHELL PETROLEUM DEVELOPMENT COMPANY NIG LTD. V TIEBO & ORS… special damages are such as the law will not infer from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”PER IGNATIUS IGWE AGUBE, J.C.A.

BURDEN PLACED ON A PLAINTIFF SEEKING SPECIAL DAMAGES

The law is settled from the galore of authorities enunciated by the Apex Court and this Court that for a Claim of special damages to succeed, it must be strictly proved. The Plaintiff must establish his entitlement to such special damages by adducing credible evidence. This requirement however does not impose on the Claimant an extra-ordinary measure of evidence or special category of evidence to establish entitlement to special damages. Neither does it mean that such damages should be established beyond reasonable doubt as it is the position in criminal cases. All that is required is that the Claimant should establish his entitlement by credible evidence of such character as would satisfy the Court that he is indeed entitled to the award under that head, otherwise, the general law of evidence as to proof on balance of probabilities or by preponderance or weight of evidence which ordinarily applies in civil proceedings operates mutatis mutandis. See the case of OWUNO V. C.O.P KADUNA STATE (2012) ALL FWLR (PT. 633) 1862 AT 1892-1893. PER IGNATIUS IGWE AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Benue State, Holden at Makurdi and delivered per His Lordship, Hon. Justice M. A. IKPAMBESE on the 28th day of June, 2018, whereof the Plaintiff/Respondent was awarded the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only as special damages.

Dissatisfied with the Judgment, the Appellant invoked the jurisdiction of this Court by filing a Notice of Appeal predicated on Eight (8) Grounds hereunder reproduced without their respective particulars:
“GROUNDS OF APPEAL
GROUND ONE:
The learned Trial Judge erred in law when he held that the Plaintiff had capacity to institute this case as he did when the Plaintiff were not members of the same family and have their different houses and it is competent and this has occasioned substantial miscarriage of justice.
GROUND TWO:
The learned Trial Judge misdirected himself in law when he held thus:
“On the Issue of Akaangee Hula (PW2) not being on the list pleaded, it was explained during

cross-examination of PW2 by Defendant’s Counsel thus; My name is on No. 46 but was changed to English name. Therefore, the name of Akaangee Hula and Marcellinus refer to one and the same person as explained but there was no pleading to that effect and this has led to a miscarriage of justice”.
GROUND THREE:
The learned Trial Judge misdirected himself in law when he held as follows:
“The estimate/valuation in paragraph 9 of the Amended Statement of Claim and paragraph 7 of the Amended Statement on Oath of the Plaintiff was based on the compensation earlier on paid to the neighbours/kinsmen of the Plaintiff in the area as compensation and went on to award special damages of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only which was not specially pleaded and not supported by evidence and proved strictly and this has occasioned substantial miscarriage of justice.”
GROUND FOUR:
The learned Trial Judge erred in law when he awarded the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only to the Plaintiff’s family which ran contrary to the evidence at

the locus in-quo where only a house with two rooms belonging to Akaangee Hula was shown to the Trial Judge and Counsel to the parties and this has occasioned substantial miscarriage of justice.
GROUND FIVE:
The learned Trial Judge erred in law when he awarded special damages of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only when same has not been specifically pleaded and strictly proved as required by law and this has occasioned substantial miscarriage of justice.
GROUND SIX:
The learned Trial Judge erred in law when he awarded the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only as special damages when there was no valid Statement on Oath which was the evidence by the Plaintiff and this has occasioned substantial miscarriage of justice.
GROUND SEVEN:
The learned Trial Judge erred in law when he awarded the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only in favour of the Plaintiff’s family Nos. 41-50 when the erection of the pylon has not caused any injury to the Plaintiff and this has occasioned substantial

miscarriage of justice.
GROUND EIGHT:
The judgment of the learned Trial Judge is unreasonable, unwarranted and cannot be supported having regard to the evidence placed before the Honourable Court.”

The Reliefs sought by the Appellant are as follows:-
a. The Appellant prays for an order allowing the Appeal in its entirety by setting aside the judgment of the Trial Court.
b. An order dismissing the Suit of the Plaintiff/Respondent for lacking in merit.

STATEMENT OF FACTS:
The case of the Plaintiff/Respondent at the trial Court was that, sometime in 2009, the 1st Defendant surveyed a right of way for the power project and enumerated affected persons to be compensated and that the dimension of the right of way was 25 metres from the middle of the right of way where the electricity towers were to be erected. He stated that due to the hazardous nature of electricity, those compensated were to live at least 25 metres away from the towers, but that some time in 2012, the 2nd Defendant started erecting the electricity towers from Makurdi via Igbor to Enugu and that the 2nd Defendant decided to divert the position of the

tower by erecting same at the Plaintiffs’ land where 64 persons were affected. See pages 6-7 of the Records.

Again, he maintained that when the diversion occurred, the Defendants admitted their fault wherein Engineer Lawal who was representing the 2nd Defendant held a meeting with the Plaintiff and Counsel A.V. Antom Esq. at Mayange Nyam’s compound in the course of the meeting which he (the Engineer) assured the Plaintiff that they would be relocated and compensated but when the promise was not fulfilled, the Plaintiffs met their Counsel A.V. Antom Esq. who wrote a Pre-action Notice to the 1st Defendant.

It was the further case of the Plaintiff that the 2nd Defendant contracted Policemen and Operation Zenda, a unit of anti-robbery team with Police and Military outfit to watch as they erected their towers and that the conduct of the Defendants was deliberate and calculated to take over the Plaintiff’s ancestral land without good cause. According to the Plaintiff, it was for the above reasons that he initiated the Suit for himself and on behalf of the 63 persons, who were affected by the erection of the 330KVA electricity line of the

Appellant. Whereof, in his Amended Statement of Claim dated 16th April, 2014 but filed on the 17th of April, 2014, he claimed against the Defendants jointly and severally as follows:
1. An Order for the Defendants to pay the Plaintiffs the sum of Seventy-Six Million, Six Hundred and Ninety-Six Thousand (N76,696,000.00) only.
2. Cost of litigation, Two Million, Five Hundred Thousand Naira (N2,500,000.00) only.

On the other hand, the case of the Defendant at the trial Court (now Appellant) was that sometime in 2012, the Defendant was erecting electricity towers from Makurdi to Enugu and diverted the lines away from their original route which had affected the houses of the Plaintiff’s family members and economic trees and that the Plaintiff demanded for compensation on behalf of 64 persons from the Defendant but there was no positive response.

He maintained that it was as a result of the Defendant’s non-compliance with the compensation that the Plaintiff’s family members instituted the case at the Benue State High Court, Makurdi after serving on the Defendant a Pre-action Notice and that the Plaintiffs’ have their

different lands, houses and economic crops without common interest.

At the hearing of the Suit, the Plaintiff/Respondent called one Witness while he testified for himself as PW2. See pages 117-120 of the Records. On the other hand, the Defendant/Appellant called a lone Witness. See pages 121-122 of the Records.

At the close of defence, the Trial Court ordered for a visit to the locus in-quo at the instance of the Plaintiff/Respondent Counsel. See pages 123-124 of the Records. Thereafter, the learned Counsel filed their respective Final Written Addresses and Judgment was entered in favour of the Plaintiffs/Respondents.

Dissatisfied with the decision of the Trial Court, the Appellant filed a Notice of Appeal predicated on Eight Grounds as indicated above. The Appellant in his Brief of Argument dated 28th November, 2018 and filed on the 29th November, 2018 was settled by AMUWA OLASOJI OLATUNDE, MCIArb., wherein five Issues were formulated for determination to wit:
“ISSUES FOR DETERMINATION
1. Whether the Respondent who had no common interest with the 64 members sued in the instant Suit could sue in a representative capacity when

there was no common interest? (Ground One).
2. Whether facts that were not pleaded and not supported by evidence could be relied upon by a Trial Judge to give judgment to a party in a Suit? (Ground Two).
3. Whether the award of special damages of Thirteen Million, Six Hundred and Seventy Thousand (N13,670,000.00) only could be justified in law in the light of pleadings and evidence placed before the trial Court as same were not specifically particularized and strictly proved and without injury to the Plaintiffs? (Grounds Three, Four, Five and Seven).
4. Whether there was a valid Statement on Oath which constitutes evidence at the trial to warrant the award of Thirteen Million, Six Hundred and Seventy Thousand (N13,670,000.00) only as special damages? (Ground Six).
5. Whether from the totality of evidence adduced at the trial Court, the judgment of the learned Trial Judge is not against the weight of evidence? (Ground Eight).”

The Respondent in his Brief of Argument dated and filed on the 29th of March, 2019 and settled by Dr. VANEN ANTOM, Esq., adopted verbatim the Appellant’s five Issues for the determination of

this Appeal.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE:
“WHETHER THE RESPONDENT WHO HAD NO COMMON INTEREST WITH THE 64 MEMBERS SUED IN THE INSTANT SUIT COULD SUE IN A REPRESENTATIVE CAPACITY WHEN THERE WAS NO COMMON INTEREST? (GROUND ONE).”
On this Issue, the learned Counsel for the Appellant contended that it was wrong for the learned Trial Judge to have held that the Plaintiffs had capacity to institute the case and that one of the Plaintiffs/Respondents’ who testified as PW2 was never mentioned or included in the list of the 64 persons who were affected by the transmission line as he referred this Court to the Amended Statement of Claim dated 17th April, 2014 at page 9 of the Records and paragraph 7 of PW2’s evidence at pages 65-70 and 79-83 of the Records.

It was the contention of the learned Counsel for the Appellant that, the evidence of the Plaintiff/Respondent who testified as PW2 was compounded by the testimony of PW1 who was a native of Tse-Sough, a different village from that of Tse-Nyam and that PW1 did not furnish the Court with evidence that the Suit was initiated by himself

and the family of Ignatius Anja against the Appellant.

Placing reliance on the authority of LAWAL V. ATTORNEY GENERAL, KWARA STATE (2012) ALL FWLR (PT. 618) P. 991 PARAS B-D, he submitted that for a party to sue in a representative capacity, certain conditions must co-exist and that PW2 was not one of the 64 persons who were allegedly affected by the transmission line and his name was not captured in the list of the persons pleaded at pages 66-68, 80- 82 of the Records.

It was his further submission that the Plaintiff/Respondent cannot sue in a representative capacity because he has a different interest from others. The learned Counsel therefore relied on the authorities of J.A ADEDIRAN & ORS V. INTERLAND TRANSPORT LTD (1991) 12 SCNJ 27 AT 46 and ORAGBAIDE V. ONITIJU (1962) ANLR 32 AT 37-78; to accordingly urge this Court to hold that there was no common interest between the purported Plaintiff/Respondent and other members of the family he claimed to have represented in the Suit and that this Issue should be resolved in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO:

“WHETHER FACTS THAT WERE NOT PLEADED AND NOT SUPPORTED BY EVIDENCE COULD BE RELIED UPON BY A TRIAL JUDGE TO GIVE JUDGMENT TO A PARTY IN A SUIT? (GROUND TWO).”

On this Issue, the learned Counsel for the Appellant contended that, the Pleadings revealed that Akaangee Hula was the Plaintiff in the Suit who sued in a representative capacity as can be seen at pages 65-70 and 79-83 of the Records and that under cross-examination the Plaintiff/Respondent testified that the name Akaangee Hula was not on the list. See page 118, lines 25-28 of the Records.

He maintained that there was nowhere in the entire Pleadings and Sworn Deposition on Oath that Akaangee Hula was reflected as a member of the families he sued on their behalf neither was Marcellinus Hula described anywhere in the Pleading or Deposition and there was no evidence to marry facts and evidence that Marcellinus Hula was the same person as Akaangee Hula as he relied on the case of OKWEJIMINOR V. GBAKEJI (2008) ALL FWLR (PT. 409) 405 AT 438 SC.

It was his further submission that since the salient facts about the names Marcellinus Hula and Akaangee Hula were not pleaded or stated

to be the same, such names cannot be relied on for compensation. He urged this Court to resolve this Issue in favour of the Appellant against the Respondent.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER THREE:
“WHETHER THE AWARD OF SPECIAL DAMAGES OF THIRTEEN MILLION, SIX HUNDRED AND SEVENTY THOUSAND (13,670,000.00) ONLY COULD BE JUSTIFIED IN LAW IN THE LIGHT OF PLEADINGS AND EVIDENCE PLACED BEFORE THE TRIAL COURT AS SAME WERE NOT SPECIFICALLY PARTICULARIZED AND STRICTLY PROVED AND WITHOUT INJURY TO THE PLAINTIFFS? (GROUNDS THREE, FOUR, FIVE AND SEVEN).”
In canvassing this Issue, the learned Counsel to the Appellant argued that the Trial Court was patently wrong to have awarded the sum of Thirteen Million, Six Hundred And Seventy Thousand (N13,670,000.00) only to the Plaintiff/Respondent as Special Damages and that a careful look at the items mentioned in paragraph 9 of the Statement of Claim reveals that those items were not pleaded neither were they particularized or itemized as he relied on the authorities of ALKALI CONSULTANT & ANOR V. YOBE STATE GOVERNMENT & ANOR (2012) ALL FWLR (PT. 627) 780 AT 792

and ALHAJI SENATOR AYINLA OLOMODA V. MR. OLANIYI MUSTAPHA & 3 ORS (2011) ALL FWLR (PT. 559) 1080 AT 1136.

It was his contention that a Plaintiff/Respondent who has the advantage of asserting his Claim upon a precise calculation must give the Defendant access to those facts in a particularized format as prescribed by the rules. Thus, a Claim for Special Damage must be strictly proved as he relied on the authorities of AGBAJE V. JAMES (1967) NWLR 49 AT 51-52 PAGE 195, PARAS. A-B and HON. NZE HERBERT OSUJI & ANOR V. ANTHONY ISIOCHA (1989) 3 NWLR (PT. 111) 633 AT 638.

Relying further on the authority of ORHUE V. N.E.P.A (1998) 7 NWLR (PT. 557) 187, the learned Counsel for the Appellant submitted that the Plaintiff/Respondent has not proved any damage as they were still living in the two rooms up till the year 2013 when the Court visited the locus in-quo. He urged this Court to resolve this Issue in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER FOUR:
“WHETHER THERE WAS A VALID STATEMENT ON OATH WHICH CONSTITUTE EVIDENCE AT THE TRIAL TO WARRANT THE AWARD OF THIRTEEN MILLION, SIX

HUNDRED AND SEVENTY THOUSAND (13,670,000.00) ONLY AS SPECIAL DAMAGES? (GROUND SIX).”

The learned Counsel for the Appellant contended that there was no valid Deposition on Oath made by the Plaintiff/Respondent at the trial Court in support of his Claim to justify the award of Thirteen Million, Six Hundred And Seventy Thousand (N13,670,000.00) only as he referred us to paragraph 17 at pages 82-83 of the Records.

Still on the same score, he maintained that the Written Statement on Oath of the Plaintiff/Respondent which accompanied the Amended Statement of Claim did not comply with the provision of Section 13 of the Oaths Act. He again referred us to the authorities of OBED ORLANDO IBE & ANOR V. NKIRU UGOCHUKWU & 41 ORS (2010) ALL NWLR (PT. 504) 1590 AT 1592-1593, CHIKWELU CHRIS OBUMNEKE V. OKEKE SYLVESTER & ANOR (2010) ALL FWLR (PT. 605) 1945 AT 1947 and GTB PLC V. ABIODUN (2017) LPELR-42551 (CA), HART V. HART (1990) 1 NWLR (PT. 126) and IKIMI V. GODWIN OMEMNLI (1995) 3 NWLR (PT. 383).

Predicated on the above authorities, it was the submission of the learned Counsel for the Appellant that this Court should resolve this Issue

against the Respondent and hold that there was no valid Statement on Oath which constituted evidence in support of the Claim of the Respondent to warrant the award of the sum of Thirteen Million, Six Hundred And Seventy Thousand (N13,670,000.00) only to the Plaintiff/Respondent.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER FIVE:
“WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED AT THE TRIAL COURT, THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS NOT AGAINST THE WEIGHT OF EVIDENCE? (GROUND EIGHT).”
On this Issue, the learned Counsel for the Appellant contended that the Plaintiff/Respondent failed to prove his case on the balance of probability to be entitled to the Judgment of the lower Court and that the provision of Section 131 of the Evidence Act, 2011 is to the effect that he who alleges must prove as the burden of proving a particular fact is on a party who asserts.

Again, it was his argument that the judgment of the trial Court was against the weight of evidence as he referred us at pages 152-154 of the Records and argued that there was no valuation from an Estate/Quantity Surveyor stating how much others were

paid. Therefore, he submitted that the trial Court acted on mere conjecture. References were made to the authorities of OLAGESIN V. THE STATE (2013) ALL FWLR (PT. 670) 137 AT 1382 PARAS. B-E, NWACHUKWU V. THE STATE (2002) FWLR (PT. 123) 312, THE STATE V. AIBANGBEE (1988) 3 NWLR (PT. 84) 548, MC INVESTMENT LTD. V. CORE INVESTMENT & CAPITAL MARKET LIMITED (2012) ALL FWLR (PT. 648) 816 AT 828 PARAS. E-F and GAMBARI V. IBRAHIM (2012) ALL FWLR (PT. 664) 29 AT 57 PARA F; to urged us to adopt and rely on the judicial authorities cited above and resolve this Issue in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER ONE:
“WHETHER THE RESPONDENT WHO HAD NO COMMON INTEREST WITH THE 64 MEMBERS SUED IN THE INSTANT SUIT COULD SUE IN A REPRESENTATIVE CAPACITY WHEN THERE WAS NO COMMON INTEREST?”
In canvassing this Issue, the learned Counsel for the Respondent contended that the Respondent had the capacity to institute the Suit in a representative capacity he being a member of the Tse-Nyam’s Family whose house was also affected by the erection of 330KVA Electricity Towers of the Appellant. He

maintained that the Respondent is one of the 64 persons affected by the 330KVA Project and that his name was captured as number 64 on the list of individuals who were affected by the transmission line. In support of the above contention, the learned Counsel to the Respondent referred this Court to paragraph 9 of the Amended Statement of Claim at pages 66-68 of the Records.

It was the contention of the learned Counsel for the Respondent that the Respondent answered under cross-examination that his name was on the list as number 64 but that he had changed to English name as the learned Counsel referred us again to page 118 of the Records. He further maintained that at the visit to the locus in-quo, the Respondent pointed out his house which was directly under the towers.

In the light of the foregoing, the learned Counsel for the Respondent submitted that the Respondent was competent enough to have instituted the Suit for himself and on behalf of the Tse-Nyam’s Family of Mbazu and that there was a common interest existing between the 64 members of the families which was the danger posed by the erection of the 330KVA Towers to their lives and

property. He referred this Court to the authorities of LAWAL V. ATTORNEY GENERAL, KWARA STATE (2012) ALL FWLR (PT. 618) P. 991 PARAS B-D; J.A ADEDIRAN & ORS V. INTERLAND TRANSPORT LTD (1991) 12 SCNJ 27 AT 46 and ORAGBAIDE V. ONITIJU (1962) ANLR 32 AT 37-78; as he urged us to resolve this Issue in favour of the Respondent.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER TWO:
“WHETHER FACTS THAT WERE NOT PLEADED AND NOT SUPPORTED BY EVIDENCE COULD BE RELIED UPON BY A TRIAL JUDGE TO GIVE JUDGMENT TO A PARTY IN A SUIT?”
On this Issue, the learned Counsel for the Respondent contended that the Respondent in paragraph 9 of the Amended Statement of Claim pleaded the details of the individuals who were affected by the erection of the 330KVA Electricity Line of the Appellant and that number 46 on the list is the name of the Respondent (Marcellinus Hula). Reference was made to pages 65-68 of the Records to buttress the above contention.

It was submitted still on the above point that the name Marcellinus Hula was fully included in the Respondent’s pleading as one of the persons affected by the erection of the

330KVA Electricity Line and that during cross-examination, the Respondent answered in the affirmative that his name was on the list of persons affected by the 330KVA but later changed to English.

He maintained that the submission of the learned Counsel to the Appellant that the facts about Marcellinus Hula and Akaangee Hula as being one and the same person were not pleaded, was misconceived as those facts were pleaded as can be gleaned from paragraph 9 of the Amended Statement of Claim.

It was his further submission that the Respondent and his family have shown that they were adversely affected by the erection of the towers on their land and he relied on the authorities of INAKOJU V ADELEKE (2007) 1 KLR (PT. 228) 291 AT 413, FAMFA OIL LIMITED V. A.G FEDERATION (2003) 18 NWLR (PT. 852) 453 AT PAGES 471-472; in so submitting.

In concluding his argument on the above Issue, the learned Counsel for the Respondent contended that the findings of the trial Court was not contrary to the evidence adduced and that there was certainly no miscarriage of justice meted on the Appellant. He also urged us to resolve this Issue in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER THREE:
“WHETHER THE AWARD OF SPECIAL DAMAGES OF THIRTEEN MILLION, SIX HUNDRED AND SEVENTY THOUSAND (N13,670,000.00) ONLY COULD BE JUSTIFIED IN LAW IN THE LIGHT OF PLEADINGS AND EVIDENCE PLACED BEFORE THE TRIAL COURT AS SAME WERE NOT SPECIFICALLY PARTICULARIZED AND STRICTLY PROVED AND WITHOUT INJURY TO THE PLAINTIFFS?”
On this Issue, the learned Counsel for the Respondent submitted that the Respondent specifically pleaded and strictly proved the special damages awarded to them by the trial Court as the list of the individuals who were affected, numbering from 41-53 were all descendants of Hula Nyam and that during cross-examination, the Respondent answered in the affirmative that Hula Nyam and Atim Atongo were one and the same family. He referred this Court to Paragraphs 8-9 of the Amended Statement of Claim at pages 66-67 of the Records and paragraphs 6-7 of the Witness Statement on Oath at pages 79-82 of the Records. ALKALI CONSULTANT & ANOR V. YOBE STATE GOVERNMENT & ANOR (2012) ALL FWLR (PT. 627) 780 AT 792; was relied on by Counsel to the Respondent in

support of the above submission.

It was his submission that it was not correct for the Appellant to argue that Tyolumum Ato and Aondoaver Ato were not members of Hula Nyam’s Family for the singular reason that they do not bear Hula as their surname and that, it was not necessary that all the descendants of Hula Nyam must bear Hula because some of his grand children may choose to answer their immediate father’s name instead of their grand father’s name.

Still on the above score, the learned Counsel for the Respondent further submitted that the Respondent creditably pleaded and proved his Claim as required by law and that the argument canvassed by the learned Counsel to the Appellant that the Respondent failed to prove his Claim was misconceived as the law does not place on the Respondent an extraordinary measure of burden of proof beyond reasonable doubt to establish his Claim in a case because evidence of special damages can be accepted as proof of Claim. For the above submission, he referred us to the authorities of OWUNO V. C.O.P KADUNA STATE (2012) ALL FWLR (PT. 633) 1862 AT 1892-1893 PARAS G-B, AUDU V. OKEKE (1998) 3 NWLR (PT.

542) 373, ARAF V. ONYEDIM (2012) ALL FWLR (PT. 625) 265 AT. PP. 288-289 PARA G-A and JULIUS BERGER (NIG) PLC V. OGUNDEHIN (2013) ALL FWLR (PT. 696) 497 AT 527.

On the above authorities, he submitted further that the Respondent has proved his case as required by law and that the Appellant did not challenge the figures put up by the Respondent in his pleadings neither did he challenge the evidence.

Again, the learned Counsel for the Respondent contended that the Respondent pleaded the property that were affected by the transmission line with their estimated value as required. The authorities of AKINKUGBE V. EWULUM HOLDINGS LTD (2008) 4 KLR (PT. 252) P. 1499 AT 1511, WEMA BANK PLC V. L.I.T. (NIG) LTD (2012) ALL FWLR (PT. 606) 436 AT 453, ANIKE V. SPDC (NIG) LTD (2012) ALL FWLR (PT. 638) 975 AT 984 and OWUNO V. C.O.P KADUNA STATE (2012) ALL FWLR (PT. 633) 1862 AT 1901 PARAS C-H; were all cited in support of the above submission.

The learned Counsel for the Respondent argued further that paragraphs 3 and 4 of the Appellant’s Statement of Defence were evasive and did not challenge the pleadings of the Respondent as contained in paragraph 9 of his

Statement of Claim and that the Court is enjoined to believe the unchallenged evidence of the Respondent as reliance was again placed on the authorities of OANDO NIG PLC V. ADIJERE WEST AFRICA LTD (2013) ALL FWLR (PT. 691) 1454 AT 1473 PARA C; P. 1490 PARAS E-F.

On the same footing, the learned Counsel for the Respondent submitted that the Appellant who failed to challenge the Respondent’s Claim cannot be heard challenging same as it is trite that facts not controverted or challenged are deemed admitted as he urged this Court to so hold and dismiss the Appeal for lacking in merit.

The learned Counsel for the Respondent contended again that the Respondent and members of his family were still living under the 330KVA Line erected by the Appellant and that it was disheartening for the Appellant to argue that the Respondent has not suffered any damage even though they were still living under the 330KVA Line as a result of the Appellant’s refusal to compensate them. He therefore submitted finally that the aim of the compensation was to enable those affected to relocate from the Electricity Line for at least 25 metres away and that it was the

potent danger which the trial Court anticipated that led to the award of the Claim as he urged this Court to resolve this Issue in favour of the Respondent.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER FOUR:
“WHETHER THERE WAS A VALID STATEMENT ON OATH WHICH CONSTITUTE EVIDENCE AT THE TRIAL TO WARRANT THE AWARD OF THIRTEEN MILLION, SIX HUNDRED AND SEVENTY THOUSAND (13,670,000.00) ONLY AS SPECIAL DAMAGES?”
On this Issue, the learned Counsel for the Respondent submitted that Issue Number Four (4) so distilled by the learned Counsel for the Appellant is incompetent, null and void and that throughout the hearing of the case at the trial Court, this Issue was not raised for determination neither did the trial Court make any pronouncement in that regard as he referred this Court to the Amended Statement of Defence at pages 88-90 of the Records and the Appellant’s Final Written Address at pages 125- 133 of the Records.

It was his argument that the Appellant never questioned the validity of the Statement on Oath of the Respondent at the trial Court and as a result of that, he cannot raise same before this

Court without first obtaining the leave of this Court. For this contention, reliance was placed on the authorities of AGBOOLA V. UNITED BANK FOR AFRICA PLC (2011) 3 KLR (PT. 293) 725 AT 737-738, GARUBA V. OMOKHODION (2011) 6 KLR (PT. 298) 1707 at 1733, USMAN V. THE STATE (2014) 5 KLR (PT. 348) 2189 AT 2199 and GWEDE V. INEC (2014) 9-11 KLR (PT. 353) 3389 AT 3409.

It was his final submission on the above Issue that Issue four (4) as formulated by the learned Counsel for the Appellant without the leave Court first sought and obtained is incompetent and liable to be struck out as he urged us to so hold.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER FIVE:
“WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED AT THE TRIAL COURT, THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS NOT AGAINST THE WEIGHT OF EVIDENCE?”
On this Issue, the learned Counsel for the Respondent adopted his arguments and submissions on Issue Number Three (3) above and urged this Court to hold that the Respondent discharged the burden of proof placed on him by law and was entitled to the Judgment of the lower Court.

Consequently, it was the final

submission of the learned Counsel for the Respondent that the trial Court creditably evaluated the evidence of the parties before arriving at a decision in awarding the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only to the Respondent. We were then urged to so hold by dismissing this Appeal.

RESOLUTION OF ISSUE NUMBER ONE:
“WHETHER THE RESPONDENT WHO HAD NO COMMON INTEREST WITH THE 64 MEMBERS SUED IN THE INSTANT SUIT COULD SUE IN A REPRESENTATIVE CAPACITY WHEN THERE WAS NO COMMON INTEREST?”
In the resolution of this First Issue I must prefatorily remark that the nature of a representative action is such that given a common interest and grievance, a representative Suit is said to be appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See OGAMIOBA V. OGHENE (1961) 1 ALL NLR 441. Meanwhile, the underlying jurisprudential postulate entrenched in a representative capacity Suit is that, the person or persons suing in a representative capacity must have the same interest in the proceedings. The implication of the above is that, parties on record

and those they represent must have common interest. See the case of ADELEKE V. ANIKE (2006) 16 NWLR (PT. 1004) 162. Thus, the subject matter must evince a common interest as opposed to diverse interests, common grievance and reliefs sought must in their nature, be beneficial to all the representatives and those represented as in the instant case. See the authorities of ADEDIRAN & ANOR VS. INTERLAND TRANSPORT LTD (1991) 9 NWLR (214) 155; (1991) LPELR-88; ELIJAH IDISE & ORS VS. WILLIAMS INTERNATIONAL LTD (1995) 1 NWLR (PT. 370) 142; (1995) SCNJ 120; (1995) LPELR-1424.
The Erudite Law Lord of the Apex Court, ONNOGHEN, CJN (as he then was) at page 13, paras. B-E in the case of CHIEF UGBOR OFIA & ORS V. CHIEF ISAIAH MBA EJEM & ORS (2006) LPELR-2266 (SC); has this to say on the requirements for suing in a representative capacity as follows:
“…this Court listed the essential requirements for people who desire to sue in representative capacity to include the following: (1) there must be numerous persons interested in the case or the side to be represented. (2) All those interested must have the same interest in the Suit, that is

their interest must be joint and several. (3) All of them must have the same grievance. (4) The proposed representative must be one of them and (5) The relief sought must be in its nature beneficial to all persons being represented.”
See also the case of OLATUNJI V. REGISTRAR OF COOPERATIVE SOCIETIES (1968) NMLR.

Having established the background and requirements upon which a representative action can be initiated, it is expedient therefore to look at the gravamen of the Appellant’s case.

In the instant case, the grievance of the Appellant is that the Respondent who was the Plaintiff at the trial Court lacked the prerequisite capacity to sue in a representative capacity on the basis that he has no common interest in the Suit as his name was not mentioned or included in the list of 64 persons affected by the 330KVA Electricity Line installed by the Appellant.

MBANEFO V. AGBU & ANOR (2014) LPELR-22147 (SC); where the Apex Court per KEKERE-EKUN, JSC at page 51, paras. B-D opined that:
“The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that the facts exist. It is also trite that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumptions that may arise on the Pleadings. See Section 131, 132 and 133 of the Evidence Act 2011, as amended…”
Accordingly, for purposes of clarity, paragraphs 1, 9, 10, 15 and 17 of the Plaintiff’s/Respondent’s Amended Statement of Claim shall be reproduced hereunder:
“1. The Plaintiff is of Mbazu, Mbaikyu, Yonov in Gwer-East Local Government Area and sued on behalf of himself and the families of Hula Nyam, Ubur Nyam, Mayange Nyam and Atim Atongo.
9. That while at the Plaintiff’s land at Mbazu, the second Defendant decided to divert the position of the

tower and has erected the towers in the land of the Plaintiffs that the people who were adversely affected are shown in the table below…the table shows the list of individuals, structures and economic trees that were adversely affected by the 400KVA power transmission line of the Niger-Delta Power Holding Company (i.e Pylon 43 &44) at Tse-Nyam, Mbazu- Igbor, Gwer-East Local Government Area of Benue State.” On the said table, the Plaintiff’s/Respondent’s name was captured as Maecellinus Hula. See number 46 in the row of persons affected to be compensated.
10. That as the towers have been erected, the compound of the Plaintiffs with over sixty (60) people and houses made of zinc and thatch have to be relocated or else Plaintiffs will be settled under the electricity transmission lines and within 25 metres.
15. That the division of Pylon 41 and 42 affected the family compound of Mark Amuaga and Ignatius Anja of Tse-Sough respectively while that of Pylon 43 and 44 affected the family compound and economic trees of the Plaintiffs who are of Tse-Nyam.
17. That the Plaintiffs are deeply aggrieved and helpless hence this action.”

It is crystal clear that the Respondent has the capacity as enumerated in OLATUNJI V. REGISTRAR OF COOPERATIVE SOCIETIES (supra); to institute the action in a representative capacity as his common interest was firmly established. This is to the effect that none of those persons affected by the cause of action rightly complained of his nomenclature or his interest. To further substantiate his interest, it was revealed that at the visit to the locus in-quo, the Respondent also pointed out his house which was directly under the towers. See page 152 of the Records.
It is also not in doubt that the Respondent during cross-examination answered in the affirmative that his name was captured in paragraph 9, Number 46 of his Amended Statement of Claim at page 51 of the Records as Marcellinus Hula. Now looking at the purport of cross-examination, the Supreme Court per TOBI, JSC in BUHARI V. INEC (2008) 19 NWLR (1120) 246 at 415 para B, para.392. C held that:
“Cross-examination plays a vital role in the truth searching process of evidence procured by examination-in-chief. It relates to authenticity or veracity of the witness, a Court

of law is entitled not to place probative value on evidence which does not pass the test of cross-examination. In view of the fact that cross-examination plays a vital role in the determination of the weight to be attached to a document under Section 92, and a person who did not make the document is not in position to answer questions on it.”
Accordingly, from simple a priori reasoning, the name Akaangee Hula and Marcellinus Hula refer to one and the same person as was established during cross-examination. That was why the lower Court firmly attached probative value to the evidence elicited from the Respondent. NGWUTA, JSC (of blessed memory) in PIUS V. THE STATE (2015) LPELR-24446 (SC) said:
“Evidence elicited under cross-examination, if it relates to a fact in Issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination in-chief. See GAJI V. PAYE (2003) 8 NWLR (PT. 892) 114.”
Predicated on the above, I am in total agreement with the holding of the lower Court at pages 51-52 lines 42-43 of the Records that the Plaintiff by his Pleadings and evidence adduced, has established

common interest or same interest which is a necessary ingredient for the maintenance of an action in representative capacity.

Consequently, I am of the opinion that the Respondent having established in his Pleadings the facts of his common interest, coupled with the evidence adduced during cross-examination leaves me with no doubt that he has the locus to initiate the Suit under a representative capacity as was rightly held by the trial Court. This Issue is therefore resolved in favour of the Respondent against the Appellant.

RESOLUTION OF ISSUE NUMBER TWO:
“WHETHER FACTS THAT WERE NOT PLEADED AND NOT SUPPORTED BY EVIDENCE COULD BE RELIED UPON BY A TRIAL JUDGE TO GIVE JUDGMENT TO A PARTY IN A SUIT?”
The Courts have stated over and over that in an action fought on Pleadings, the very foundation is the Pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his Claim or Defence as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and pleadings

operate to define and delimit with clarity the real issues in controversy between the parties.

Consequently, it is the law that all material facts that must sustain a party’s case must be pleaded. In the instant case, the Plaintiff/Respondent in paragraph 9 of his Amended Statement of Claim pleaded the details of the individuals who were affected by the installation of the 330KVA Electricity Line of the Appellant and that his name was captured at Number 46 as Marcellinus Hula. See pages 65-68 of the Records. The Apex Court in the case of OBA E. A. IPINLAIYE II V. CHIEF JULIUS OLUKOTUN (1996) LPELR-1532 (SC) held that:
“It is a cardinal rule of pleadings that for material fact to be admissible in evidence, it must be pleaded. As a result, neither party will be allowed to raise at the trial of a Suit, an Issue of fact which he has not pleaded…”

There is no doubt that the Plaintiff/Respondent pleaded material facts that were relevant to his Claim. Paragraph 9 of his Amended Statement of Claim contains precise statement of the names of persons who were grossly affected by the installation of the 330KVA Electricity Line. I am

therefore unable to fault the above as it is borne out from the Records. Under cross-examination, the Plaintiff/Respondent reiterated in strong terms the facts pleaded under paragraph 9 of his pleadings as follows:
“I have seen my Statement of 11th May, 2016. I have seen paragraph 7 of the list of persons affected. In the names mentioned none have Ubur Nyam, Hula Atongo. I have not measured the size of the land, my name is on the list as No. 46 but changed to English name. The name Akaangee Hula is not on the list.”

I reiterate my considered view as can be gleaned from the Records that the facts of the name Marcellinus Hula was pleaded in paragraph 9 of the Amended Statement of Claim and was firmly established both in his evidence-in-chief and during cross-examination. Thus, the lower Court was right to have

attached probative to it. This Issue is again resolved in favour of the Respondent and against the Appellant.

RESOLUTION OF ISSUES NUMBER THREE:
“WHETHER THE AWARD OF SPECIAL DAMAGES OF THIRTEEN MILLION, SIX HUNDRED AND SEVENTY THOUSAND (N13,670,000.00) ONLY COULD BE JUSTIFIED IN LAW IN THE LIGHT OF PLEADINGS AND EVIDENCE PLACED BEFORE THE TRIAL COURT AS SAME WERE NOT SPECIFICALLY PARTICULARIZED AND STRICTLY PROVED AND WITHOUT INJURY TO THE PLAINTIFFS?”
Special damages are those damages which are given in respect of any consequence reasonably arising from the breach complained of. They impute pecuniary losses which have crystallized in terms of cash and values before trial. Such damages must be specifically pleaded and proved strictly. What is required to establish special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence of such a character as would suggest that he is indeed entitled to an award under that head.
The Supreme Court in the case of KOPEK CONSTRUCTION LTD. V. JOHNSON KOLEOLA EKISOLA (2010) LPELR-1703 (SC); has this to say on the nature of special

damages thus:
“Special damages are those damages which are the actual but not the necessary result of the injury complained of and which in fact, follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions. See SHELL PETROLEUM DEVELOPMENT COMPANY NIG LTD. V TIEBO & ORS… special damages are such as the law will not infer from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”

In the instant case, the grouse of the Appellant is that the learned trial Judge was wrong to have awarded the sum of Thirteen Million, Six Hundred and Seventy Thousand (N13,670,000.00) to the Respondent as special damages when same was not particularized and pleaded specially. It is not in doubt that special damages must be specially pleaded and strictly proved. Howbeit, the authorities of ALKALI CONSULTANT & ANOR V. YOBE STATE GOVERNMENT & ANOR (2012) ALL FWLR (PT. 627) 780 AT 792 and ALHAJI SENATOR AYINLA OLOMODA V. OLANIYI MUSTAPHA & 3 ORS (supra); cited by the

learned Counsel for Appellant in support of the Appellant’s case does not apply to the circumstances of this case.

That their non-applicability is as a result of the fact that the Respondent rightly adduced specific evidence in support of his Claim in paragraphs 8 and 9 of his Amended Statement of Claim and paragraphs 6 and 7 of the Witness Statement on Oath as can be seen at pages 79-82 of the Records.

that head, otherwise, the general law of evidence as to proof on balance of probabilities or by preponderance or weight of evidence which ordinarily applies in civil proceedings operates mutatis mutandis. See the case of OWUNO V. C.O.P KADUNA STATE (2012) ALL FWLR (PT. 633) 1862 AT 1892-1893.

Accordingly, the said paragraph 9 shall be reproduced hereunder for clearer comprehension.
S/N NAME DESCRIPTION OF THE HOUSES ESTIMATED UNIT COST TOTAL
1. Iorshe Mayange Uncompleted 5 bedroom flat 19 economic trees N20,000 x 19 N2,200, 000 N380,000
2. Aondover Iorshe 1 round hut 250, 000 x 1 N250,000
3. Nguyilan Iorshe 1 round hut 250, 000 x 1 N250,000
4. Mnguember Iorshe 1 round hut 250, 000 x 1 N250,000
5. Terfa Iorshe 2 round huts 250,000 x 2 N500,000
6. Innocent Mayange 3 bedroom zinc House 1 pig pen 3,000.000 x 1 250,000 x 1 N3,000,000 N250,000
7. Christian Mayange 1 round hut 7 economic trees 250,000 x 1 20,000 x 7 N250,000 N140,000
8. Vaayam Mayange 3 round huts 8 economic trees 2500 x 3 20, 000 x 8 N750,000 N160,000
9. Dorcas Matyange 1

round hut 250,000 x 1 N250,000
10. Ayuba Mayange 1 round hut 250,000 x 1 N250,000
11. Solomon Avakaa 2 round huts 1 economic trees 250, 000 x 2 20,000 x 1 N500,000 N20,000
12. Philip Iorkosu 5 rooms zinc house 1,000,000 x 4    N4,000,000
13. Sarah Iorkosu Uncompleted 3 rooms house 1,500,000 x 1 N1,500,000
14. Mnene Avakaa 2 round huts 2500 x 2 N500,000
15. Daniel Terfa 1 round huts, 3 economic trees 250,000 x 1 20,000 x 3 N250,000   N60,000
16. Ierna Asen   1 round hut 250,000 x 1 N250,000
17. Abe Asen 1 round hut 250, 000 x 1 N250,000
18. Ityo Asen 1 round hut 250, 000 x 1 N250,000
19. Sunday Asen 1 round hut 250,000 x 1 N250,000
20. Igba Achia 2 round huts 250,000 x 2 N500,000
21. Sewuese Achia 2 round huts 250,000 x 2 N500,000
22. Ayanikuma Atongo 3 rooms zinc house 2 mango trees 1,000,000 x 3 20,000 x 2 N3,000,000 N40,000
23. Igbafa Atongo 1 room zinc house 3 round huts 1,000,000 x 1 250,000 x 3 N1,000,000 N75,000
24. Sabastine Atongo 3 round huts 250,000 x 3 N750,000
25. Pius Atongo 6 round huts 250,000 x 6 N1,500,000

Nyitse Atingo 2 round huts 250,000 x 2 N500,000
27. Karkir Atongo 3 round huts 1 coconut tree 250,000 x 3 20,000 x 1 N750,000 N20,000
28. Waavega Karkir 8 round huts 250,000 x 8 N2,000,000
29. Aondongu Karkir 3 round huts 250,000 x 3 N750,000
30. Tavershima Atongo 1 room zinc house 1 round hut 1,000,000 x 1 250,000 x 1 N1,000,000 N250,000
31. Ngukeren Atongo 4 round huts 250,000 x 4 N1,000,000
32. Mbawuan Atongo 2 round huts 250,000 x 2 N500,000
33. Verlumun Atongo 1 room zinc house 1,000,000 x 1 N1,000,000
34. Dominic Gyokpe 4 rooms bedroom flat 4,500,000 x 4 N4,500,000
35. Tabitha Orban 1 room zinc house 1,000,000 x 1 N1,000,000
36. Kaior Gyokpe 2 rooms zinc house 2,000,000 x 2 N2,000,000
37. Evelyn Gyokpe 1 round hut 250,000 x 1 N250,000
38. Terlumun Gyokpe 1 room zinc house 3 round huts 1,000,000 x 1 250,000 x 3 N1,000,000 N750,000
39. Terfa Orban 2 rooms zinc house 2,000,000 x 2 N2,000,000
40. Dyako Kwen 3 round huts 250,000 x 3 N750,000
41. Vincent Hula 1 zinc house 1,000,000 x 1 N1,000,000
42. Deborah Hula 2 round huts 250,000 x 2 N500,000
43. Lucy

Kyeghve 4 round huts 6 economic trees 250,000 x 4 20,000 x 6 1,000,00 N120,000
44. Nathaniel Hula 2 rooms zinc house 2,000 000 x 2 N2,000,000
45. Dennis Chigh Hula 1 square hut 250,000 x 1 N250,000
46. Marcellinus Hula 2 rooms zinc house 2,000,000 x 2 N2,000,000
47. Terngu Akaange 1 round hut 250,000 x 1 N250,000
48. Aoadona Hula 1 round hut 250,000 x 1 N250,000
49. Terwundu Hula 1 round hut 250,000 x 1 N250,000
50. Godwin Nyam Hula 2 rooms zinc house 2,000,000 x 2 N2,000,000
51. Philomena Hula 1 round zinc house 1,000,000 x 1 N1,000,000
52. Tyolumun Ato 2 square huts 350,000 x 2 N700,000
53. Aoadover Ato 1 square hut 350,000 x 1 N350,000
54. Chinyam Ubur 1 round hut 250,000 x 1 N250,000
55. Igba Ubur 1 round hut 250,000 x 1 N250,000
56. Terva Ubur 3 round zinc house 1,000,000 x 3 N3,000,000
57. Nyamhye Ubur 1 room zinc house 1,000,000 x 1 N1,000,000
58. Mbaadega Ubur 2 rooms zinc house 1,000,000 x 2 N2,000,000
59. Deseun Ubur 3 rooms zinc house 1,000,000 x 3 N3,000,000
60. Saaondu Ubur 1 round hut 250,000 x 1 N250,000
61. Sarah Ubur 1

room zinc house 1 round hut 1,000,000 x 1 250,000 x 1 N1,000,000 N250,000
62. Sughter Ubur 1 room zinc house 1,000,000 x 1 N1,000,000
63. Anyom Akura 4 rooms zinc house 4 round huts 5,000,000 x 1 250,000 X 04 N5,000,000 N1,000,000
64. Taave Lanem 3 mango trees 2,000 x 3 N6,000
TOTAL N76,696,000

Looking at the table, the pertinent question agitating my mind is whether by the above pleaded facts, the Appellant is still in a quandary as to the nature of the Respondent’s Claim with regards to particularization. This question must therefore be answered in the negative as the Writ of Summons containing the Respondent’s Statement of Claim was already frontloaded and served on the Appellant then Defendant in accordance with the prescribed rules of that Court and was never challenged or controverted by him. The implication is that, evidence of special damages that were not challenged can be accepted as proof of the Claim. In AUDU V. OKEKE (1998) 3 NWLR (PT. 542) 373, the Court held that:
“Unchallenged evidence of special damages can be accepted as proof of the Claim. Furthermore, it is the position of law that

non-production of receipts to further prove the unchallenged oral evidence is not fatal to the Plaintiff’s Claim.”

It is trite therefore that the Respondent has proved his case as required by law. The damages claimed were specially pleaded and particularized at paragraph 9 of his Amended Statement of Claim. The Erudite Law Lord of the Apex Court UWAIFO, JSC at page 15, paragraphs A-F in the case of CHRISTOPHER U. NWANJI (TRADING IN THE NAME AND STYLE OF FIRESTONE ENTERPRISES) V. COASTAL SERVICES (NIGERIA) LIMITED (2004) LPELR-2106 (SC); opined that:
“…it is therefore stated that a Plaintiff claiming special damages has the obligation to plead and particularize any item of damages, and that the said obligation to particularize arises not because the nature of the loss is necessarily unusual, but a Plaintiff who has the advantage of being able to base his Claim on a precise calculation must give the Defendant access to the facts which makes such calculation possible: per lord DONOVAN in PERESTRELLO’S case (supra) at pages 579-580. The said paragraph 970 in MAYNE and MACGREGOR (supra) says inter alia: special damage

consists in all items of loss which must be specified by (the Plaintiff).” See also OBIMIAMI BRICKS & STONE (NIG) LTD. V. A.C.B. LTD (1992) 3 NWLR (PT. 229) 260 AT 312.”
Consequently, assuming that the Respondent failed to particularize the Special Claim, the Appellant (then Defendant), had the legal duty to demand for better and further particulars but whereas in this case the Appellant failed to do so or better still object to it, the Appellant is automatically barred by law from raising it on Appeal. In OJO OGBEMUDIA EHOLOR V. IDEMUDIA IDAHOSA (1992) 2 NWLR (PT. 223) AT 334, the Court held that:
“It has to be pointed out if the particulars of special damages were not given in the Respondent’s Amended Statement of Claim, it was open to the Appellant to demand such particulars and not wait until judgment had been given against him before raising the Issue. The legal position is that the remedy available to a Defendant presented with insufficient particulars in the Plaintiff’s pleadings is to apply for the proper further and better particulars of the damage alleged.”
This position was reaffirmed by the

Apex Court per NNAEMEKA-AGU, JSC (of blessed memory) at page 40 in the case of ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) LPELR-3158 (SC):
“If a party’s pleadings omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right to apply for such particulars as he deems necessary. If he fails to apply, and takes no objection to such particulars as given in evidence, he cannot later complain on Appeal.”

In the light of the above, it is my considered view as can be gleaned from the Records particularly the pleadings and evidence adduced in chief and during cross-examination that the Trial Court was justified in awarding the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira (N13,670,000.00) only as special damages to the Respondent. Again this Issue is resolved against the Appellant and in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER FOUR:
“WHETHER THERE WAS A VALID STATEMENT ON OATH WHICH CONSTITUTES EVIDENCE AT THE TRIAL TO WARRANT THE AWARD OF THIRTEEN MILLION, SIX HUNDRED AND SEVENTY THOUSAND (N13,670,000.00) ONLY AS

SPECIAL DAMAGES?”

The Issue of the validity of the Respondent’s Statement on Oath was never mentioned or raised by the Appellant at the trial Court neither was any pronouncement made to that effect. Therefore raising it for the first time in this Appeal without seeking and obtaining first the leave of Court, renders such an Issue incompetent.
In respect of the above principle, the Erudite Law Lord of the Apex Court MUKHTAR, JCA (as he then was) in the case of AGBOOLA V. UNITED BANK FOR AFRICA PLC (2011) 3 KLR (PT. 293) 725 AT 737-738; has this to say on the effect of raising fresh Issue for the first time on Appeal inter alia:
“This, the Plaintiff failed to do, and at this stage of the proceedings she is raising this Issue freshly, without the leave of Court. This practice is not allowed by the law, and the Court will not accommodate it, for the law is trite that to raise a fresh Issue on Appeal, a party must seek and obtain leave from the Court. A party cannot randomly stray into an argument that did not form part of the case in the lower Court and in the process seek to formulate a new and different case other than the one

originally instituted.”
The law is settled that when a party seeks to file and argue any fresh Issue in the Appellate Court, he must first seek and obtain leave of Court before raising such an Issue. An Appellant will not be allowed to raise a point or Issue that was not raised or argued at the trial Court. In respect of the above, I have carefully examined the judgment of the trial Court, I have also examined the pleadings of the parties and the evidence adduced on record and I did not relent in looking further at the Appellant’s Final Address at pages 125-133 of the Records and discovered that this Issue was never raised therein. Specifically, the said Issue did not form part of the ratio of the decision of the lower Court now appealed against. As can be seen, it is crystal clear that the Issue was raised in this Court for the first time without leave. The Appellant is not entitled to do so.
Consequently, borrowing a leaf from the plethora of authorities cited by the Apex Court on the above subject matter, this Court in the case of ORUNENGIMO & ANOR VS. EGEBE & ORS (2008) ALL FWLR (PT. 400) 655 @ 671 C-D; opined that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…Courts are bound by the Issues submitted for trial and remain so bound from the Court of trial to the final Appellate Court. An Issue not raised in the pleadings and therefore not tried at the trial Court cannot be raised at the Appellate Court through the ingenuity of the Counsel.” See BALOGUN VS. ADEJOBI (1995) 1 SCNJ 242; (1995) 2 NWLR (PT. 376) 131; OLATUNJI VS. ADISA (1995) 2 SCNJ 90; (1995) 2 NWLR (PT. 376) 167.”
It is therefore settled that since the Appellant vehemently refused to first seek and obtain leave of Court before raising fresh Issue that was never raised and canvassed at the trial Court, it suffices to say that such Issue is of no moment. In other words, it is incompetent.

Accordingly, the authorities discussed above represent in my respectful view, the correct principles of law and I have no hesitation in reaching the conclusion that those principles rightly apply to this present case. Again, this Issue is resolved in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER FIVE:
“WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED AT THE TRIAL COURT, THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS

NOT AGAINST THE WEIGHT OF EVIDENCE?”

The term “weight of evidence is defined in Black’s law Dictionary” 9th Edition, page 1731 as: “The persuasiveness of some evidence in comparison with other evidence…” In MOGAJI VS. ODOFIN (1978) 1 LRN 212, the Apex Court per FATAYI WILLIAMS JSC; had this to say on the weight of evidence thus:
“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. The totality of the evidence should be considered in order to determine which has weight and which has no weight at all, therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts of the other party, a trial Judge after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, and then apply

the appropriate law to it. If that law supports it…”

There is no doubt that the duty of Trial Courts is to appraise, consider, review and evaluate the totality of the evidence led before them and in so doing, to determine which evidence is admissible or inadmissible, relevant or irrelevant to the facts in Issue, credible or incredible and of what weight is to be attached thereon as they are opportune to witness the demeanor of parties.

Flowing from the above background, could it be said to be correct that the Trial Court failed to evaluate properly the totality of the evidence in the case or that the judgment was against the weight of evidence. My answer will certainly be in the negative. The rationale is that, having resolved the entire Issues in this Appeal against the Appellant, it is clear that the Judgment of the Trial Court was not against the weight of evidence.

However, in the instant case, the learned Counsel for the Appellant made reference to the Issue that has been resolved already. See the resolution of Issue Number Three (3) supra. But as an addendum, the visit at the locus in-quo at page 152 of the Judgment/Records

revealed as follows:
“At the locus in-quo, the Court, parties and Counsel took measurement of the Plaintiff’s house from the centre line of the electricity lines/cables hanged on the pylons. The first pylon No. 432 UGWMAK the compound of the Plaintiffs was more than twenty five (25) metres from the centre of the high tension cables. The compound of Iorshe Mayange was forty two metres away from the centre of the high tension cable while at the compound of Akaangee Hula the distance was less than twenty-five metres from the high tension centre line. From the above, it is fully established that the compound of Akaange Hula is grossly affected by the high tension cable.”

Now, it is even more glaring that at the visit to the locus in-quo, the Trial Court discovered that the Respondent’s compound was less than 25 metres from the electricity line and it was at that instance that he concluded thus:
“That the Plaintiff has proved that it was only the family of Akaangee Hula that was affected and was equally entitled to compensation under Section 44 of the Constitution of the Federal Republic of Nigeria 1999 as Amended.”

It is not in doubt that the Appellant did not support the above position as to the nomenclature of the Respondent but it was under cross-examination that the Respondent answered in the affirmative and cleared out the discrepancies that had arisen there-from thus: “My name is on No. 46 but changed to English name.”

The purport of the above is that the name Akaangee Hula and Marcellinus Hula is one and the same person as explained. Therefore, in the light of the above I am in total agreement with the submission of the learned Counsel for the Respondent that the findings of the trial Court cannot be said to be mere conjecture or speculation. Accordingly, this issue is also resolved against the Appellant in favour of the Respondent.

In conclusion, it is my considered view that having resolved all the Issues against the Appellant, it is indeed a prima facie evident that the Judgment of the Trial Court was not against the weight of evidence. This is because the trial Court credibly evaluated the evidence before arriving at a decision in awarding the sum of Thirteen Million, Six Hundred and Seventy Thousand Naira

N13,670,000.00 only to the Respondent as special damages.

Accordingly, this Appeal is unmeritorious and is hereby dismissed and the judgment of the Trial Court delivered per His Lordship, Hon. Justice M.A. IKPAMBESE; on the 28th day of June, 2018 is hereby affirmed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: Having read in draft before now the lead judgment so meticulously articulated by my learned brother AGUBE, PJCA, I cannot help but agree entirely with the sound reasoning and conclusion reached therein.

The appeal indeed is unmeritorious and it is accordingly dismissed by me. The judgment of the lower Court in Suit No. MHC/245/2013 delivered 28th June, 2018 is affirmed and the reliefs as contained in the appellant’s counter-claim are granted as well.

I abide by the consequential orders as made in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA, and I am in total agreement with the reasoning and conclusion arrived at. My Lord in succinct and concise

manner resolved the issues donated for resolution in the Appeal.

My Lord in very elaborate and exhaustive manner dealt with the issue of representative action and principles in awarding special damages, there is no room for any further elucidation. I therefore adopt the Judgment as mine and also allow the Appeal and abide by the Orders made therein.

Appearances:

Amua Olatunde, Esq. with him, Isaac Nongu, Esq. For Appellant(s)

M.D. Awule, Esq. For Respondent(s)