NDPHC PLC v. MR. SHIMAVE ANTIV (2022)

NDPHC PLC v. MR. SHIMAVE ANTIV

(2022)LCN/17194(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/MK/103/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

NIGER DELTA POWER HOLDING COMPANY PLC APPELANT(S)

And

1. SHIMAVE ANTIV (For Himself And On Behalf Of ANTIV Family Members) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON SPECIAL DAMAGES

Special damages are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the case that is, because of special circumstances or conditions. See AHMED & 2 ORS v. CBN (2012) 7 SC (Pt. II) 1 at 26. Special damages are such damages as the law will not infer from the nature of the act and do not follow in ordinary course but are exceptional in character and therefore they must be claimed specially and proved strictly. They denote those pecuniary losses which have crystallized in terms of cash and value in trial. See KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 at 90. Special damages are such that the law will not infer from the nature of the act complained of, they must be specifically pleaded and strictly proven, all the losses claimed on every item must be concrete in terms and value before trial. They do not flow in the ordinary course. See ANYAEJI MARY ANDREW V. MTN NIGERIA COMMUNICATIONS LIMITED (2016) LPELR-41181 (CA) Pages 14-15. PER HASSAN, J.C.A.

THE DUTY OF A PARTY TO PLEAD AND LEAD EVIDENCE

The position of the law as stated by the Appellant’s Counsel is that it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment, even where the defendant has failed to rebut the case of the plaintiff, the Plaintiff is duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence.
This Court in SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013) LPELR-21414 (CA) Pages 18-19 Per MBABA, JCA stated:
‘’The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet v. INEC (2011) All FWLR (Pt. 565) 203 ‘’The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.’’ Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) 124. But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proven the claim. Elias v. Omo-Bare (1982) LPELR-SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR-CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (Pt. 935) 160; see also Ogunyomi v. Ogundipe (2011) All FWLR (Pt. 594) 188, Where it was held. ‘’It is the duty of the Appellants as plaintiffs in the lower Court to prove their case…. And it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants.’’ PER HASSAN, J.C.A.

WHETHER OR NOT THE COURT CAN AWARD OUBLE COMPENSATION AS DAMAGES AGAINST THE SAME MISDEED

Evaluation of evidence is the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA v. AJIBADE (2004) 17 NWLR (Pt.902) 356 at 379. In Mrs. ELIZEBETH IRABOR ZACCALA v. MR. KINSLEY EDOSA & ANOR (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D Per M.D. MUHAMMAD, JSC Stated ‘’It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.’’ PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice M. A. Ikpambese in Suit No. MHC/159/2011, on the 6th day of February, 2017, wherein the trial Court entered judgment in favor of the Plaintiff.

The Appellant was the Defendant, while the Respondent was the Plaintiff at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court.

The Record of Appeal was compiled and transmitted to this Court on the 28th of March, 2017. The Appellant’s brief was amended and same was filed on the 29th of December, 2021, while the Respondent’s brief of argument was filed on the 20th of January, 2022. The Appellant upon being served with the Respondent’s brief of argument, did not file any reply brief in answer on point of law to the Respondent’s submissions.

At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs. The Appellant amended his notice of appeal, and the said amended Notice of Appeal which contains 10 grounds of appeal was filed on the 3rd of December, 2021.

The Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated the 10th of May, 2011, and filed on the 11th day of May, 2011, which was issued to the Respondent who was tagged as defendant at the trial Court. The reliefs sought by the Respondent against the Appellant by Paragraph 11 of the statement of claim accompanying the writ were amended and by paragraph 12 of Respondent’s amended statement of claim. The Respondent’s claims against the Appellant by paragraph 12 of his proposed amended statement of claim are as follows:
a. An order for immediate payment of compensation to the tune of Twenty Six Million (N26,000,000) only for the unathourized acts of trespass and for the destruction of economic crops and other sundry valuables on the Plaintiff’s family land.
b. General damages in the sum of Five Million Naira N50000.00.
TOTAL – Twenty-three percent of the compensation claimed for the delay in payment of same.
c. Any other equitable or legal that will meet the justice of this case. See page 307 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Respondent against the Appellant is that he is the family head representing a large family unit known and called Antiv family, numbering thousands of people with a large parcel of land situate at Antiv village near College of Advance and Professional Studies, Uni Agric Road Nyiev, Makurdi Benue State. That as family head of a large member of about 119 members, he own a large parcel of land with a lot of cultivation of cash crops, economic tress ranging from fish ponds, yams, cassava, millet, rice, mangoes, oranges and arable plain farmland.

The Respondent’s case is that in or about the year 2010, the Appellant came unto their land unauthorized and without due process of law started construction of electricity generation work trespassing unto his farmland and that of his family members, and when the Respondent became aware of the Appellant’s activities, he approached them and demanded for compensation for unauthorized acts of trespass and destruction of economic valuables, but the Appellant failed, refused and neglected to answer him.

It is the Respondent’s case that he consulted his counsel to discuss with the Appellant on the issue, but the Appellant wouldn’t listen to his counsel, hence, the institution of this suit as the Respondent has suffered a lot of economic loss by acts of the Appellant on his lands and that of 119 family members. See page 4–5 of the Record of Appeal.

The Appellant’s defence to the claim of the Respondent was that she is carrying out a project of transmission line (330kv Power line Jos–Makurdi) which was conceived as far back as 2006, and same is done with tax payers monies and the project is to help with the poor power supply problem in the country. That out of the 286 kilometer transmission line which cuts across several states and communities, it is only the Respondent’s complaint that seeks to cripple the national project that is for the general public interest.

It is the Appellant’s case that several billions of naira have been expended in the project, and farmlands with improvement on it who are affected by the power lines have been compensated as the payment of compensation is not done because a claimant has a land, but based on the improvement on the land. That compensations have been duly paid to affected communities and notice to quit issued before the project commenced.

It is the Appellant’s case that most of the claimants are land speculators and they have been paid already but are returning with a different name and identity for second payment as any person with a genuine complaint has been compensated including the Antiv family. Therefore, the Appellant is surprised by the Respondent’s case that the Antiv family had not been compensated, as the Respondent himself was at the compensation venue as an observer and representative of the local government. See pages 27–29 of the Record of Appeal.

ISSUES FOR DETERMINATION
The Appellant for the determination of this appeal distilled seven issues for determination as follows:
1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1).
2. Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

3. Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4).
4. Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5).
5. Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7).
6. Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8).
7. 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 9).

The Respondent adopted issues one and two of the Appellant and formulated three other issues. The three issues which are not tied to any ground of appeal read as follows:
ISSUE 3
Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of Appeal and not tailored to the real issue of compensation in suit no. MHC/159/2011 and valid in law to allow this appeal.
ISSUE 4
Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed.
Issue 6
Whether the totality of Appellant’s countenance before the trial Court does not qualify as a waiver of her right to defend suit No. MHC/159/2011.

I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and I sincerely believe that the issues formulated by the Appellant are apt to determine this Appeal. The Respondent did not tie his issues 6 to any ground of appeal, therefore his submissions under there goes to no issue. However, issues 3 and 4 made reference to issues 3, and issues 4, 5, 6 & 7 argued by the Appellant, therefore I shall consider the two issues as response to the Appellant’s argument in issues 3, 4, 4, 6, and 7 accordingly. I shall adopt the issues distilled in the Appellant’s brief and consider the submissions of Respondent as noted in the determination of this appeal.

ISSUE ONE
1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1).

APPELLANT’S SUBMISSION ON ISSUE ONE
Counsel commenced his argument in this issue by stating that the grouse of the Appellant in this issue for determination is that the learned trial Judge was wrong to have admitted in evidence “EXHIBIT ANT 1” (Assessment of Compensation For Tse Antiv Family Community) and used it as a basis for awarding N26,000,000.00 (Twenty Six Million Naira) only as special damages to the Respondent, when EXHIBIT ANT 1 was made only in January 2012, but smuggled into the proceeding vide a Motion No. MHC/282M/2015 granted on 15/01/2016. Therefore EXHIBIT ANT 1 was certainly made when proceedings were already pending in the trial Court in flagrant breach of Section 83 (3) of the Evidence Act 2011.

Counsel submitted that “EXHIBIT ANT 1” which was the valuation report from Ngobar & Co., Estate Surveyors & Valuers ought not to be admitted in evidence as the document was produced during the pendency of the suit. Counsel cited S. 83(3) of the Evidence Act 2011 which reads thus:
“(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”.

Counsel contended that the trial Court admitted “EXHIBIT ANT 1” even though it was objected to the trial Court admitted it and the said exhibit formed the basis of the judgment of the Court. Although the trial Court admitted in his ruling that the document was made during the pendency of the suit, yet the Court admitted it as “EXHIBIT ANT 1”.

Counsel while referring this Court to the authority of Aliyu v. Bulaki (2019) LPELR 46513 per Honourable Justice AMINA AUDI WAMBAI JCA at pages 27—28 where the Court expunged documents admitted in similar circumstance in contravention of S. 83 (3) of the Evidence Act and urged this Court to expunge “EXHIBIT ANT 1” from the record as he the Respondent commissioned the production of the document to aid him or enhance his case 55 months after the commencement of the suit.

Counsel submitted in rounding up his argument under this issue that by the above authority, the learned trial Judge was wrong to have admitted “EXHIBIT ANT 1” in evidence, and counsel urged this Court to expunge “EXHIBIT ANT 1” from the record and hold that it was inadmissible, as it was made to enhance the Respondent’s claim at the lower Court and resolve this issue in the negative.

RESPONDENT’S SUBMISSION ON ISSUE ONE
In response to this issue, the Respondent contended that the trial Court was right in law to have admitted EXH ANT1 in evidence, as although the Court of Appeal is clothed with enormous discretionary powers to reject evidence on appeal, however this is restricted to a situation where the evidence in question is totally inadmissible in law.

And nevertheless, if such evidence is only admissible upon satisfaction of certain conditions, the failure of opposing party to oppose its admissibility before the trial Court, as in the instant case, will deprive him of the right to challenge its admissibility on appeal and the appellate Court, will be aloof in such a circumstance. Counsel refers the Court to the case of Dagaci of Dere VS Dagaci of Ebwa (2006) All FWLR (Pt. 306) 786. S.C, and urged on the Court to discountenance Appellant’s contention on issue one, as not being meritorious, frivolous and of no substance in law.

ISSUE TWO
Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

APPELLANT’S COUNSEL SUBMISSION
The Appellant under this issue attacked the maker of EXHIBIT ANT 1 and called on this Court to determine whether PW II, Surveyor Justin Ormye who tendered “EXHIBIT ANT 1” in evidence who was not its maker, as the document was prepared and signed by ABU JIMAH UMORU who claimed to be an associate consultant in the firm of NGOBAR & CO., can tender the said document in flagrant breach of Section 83 (1) of the Evidence Act, 2011, as only the maker of a document is legally competent to tender it.

Counsel submitted that the Respondent did not lead any shred of evidence as to why the purported maker, Abu Jimah Umoru was not available to tender the said document as he is the maker. Counsel referred this Court to the authority of Flash Fixed ODDS Limited v. Chief J.Q. Akatugba (2001) FWLR. (Pt. 76) 709 at 730 para A—E per TOBI, J.C.A to submit that where a document is tendered by a person who is not its maker, such a document cannot be given any probative value.

Counsel then rounded up by submitting that the learned trial Judge was wrong to have placed any evidential value and attach any weight to “EXHIBIT ANT 1” which was nothing but documentary hearsay. Counsel urged this Court to invoke the provision of Section 167 (d) of the Evidence Act, 2011 and hold that failure to call Abu Jimah Umoru to come and testify would not be favourable to the Respondent. And that this Court should answer this issue for determination in the negative and not to attach any weight to EXHIBIT ANT 1 as the lower Court attached heavy weight to it as a basis for its judgment and allow the appeal on this issue.

RESPONDENT’S COUNSEL SUBMISSION
On this issue, Respondent’s counsel contended that the learned trial Judge was right to have admitted Exhibit ANT 1 in evidence through PWII. This is because, the learned trial Judge cogently advanced reasons that legally warranted admissibility of Exhibit ANT 1. Pertinently, the learned trial Judge’s reason was that there existed abundant and unchallenged evidence that the PW II is from the Estate valuers of Nogbar & Co. Moreover, the Appellant’s counsel who had ample opportunity to cross-examine the PW2, in order to prove if he was not qualified to practice as a surveyor, failed, neglected or refused to do so.

That the PWII, through whom the instant Exhibit was tendered, is an estate valuer, working under the platform of Nogbar & Co. And the hallmark of admissibility being relevancy and in the face of plaintiff counsel’s concession, his Lordship was procedurally justified admitting the Exhibit in evidence. My Lords, in a scenario as above, the learned trial Judge had no option than to have accepted him as he did. Counsel therefore prayed this Court to resolve issue two in favour of the Respondent, by holding that the learned trial Judge did not err by accepting PW 2’s evidence at trial.

ISSUE THREE
1. Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4).

APPELLANT’S COUNSEL SUBMISSIONS
The Appellant’s grievances under this issue is that the learned trial Judge was wrong to have treated “EXHIBIT ANT 1” as a product of an expert as no atom of evidence was pleaded or proffered that PW II was an expert. The qualifications and experiences of PW II was not in evidence as his evidence at page 359 of the record was to the effect that
“I am a practicing Estate Surveyor I remember making a witness statement on oath on 19/6/2016. This is the said sworn statement to me in Court. There is a valuation report attached and I can identify it with the logo of our estate firm and no more”.

Counsel contended that a critical look at EXH ANT 1 will reveal the following:
i. EXHIBIT ANT 1 (assessment of compensation) is in the firm name of Ngobar & Co.
ii. Abu Jimab Umoru signed the said EXHIBIT ANT 1 without any nexus as he did not sign for Ngobar & Co.
iii. No nexus between Abu Jimah Umoru and PW II with the said exhibit as the seal and stamp of Abu Jimah Umoru and PW II were not affixed to “EXHIBIT ANT 1” to show that they were registered by the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 Laws of the Federation of Nigeria 2004 as fit and proper to practice as such in Nigeria by virtue of part 4 (1) of the ESTATE SURVEYING AND VALUATION REGULATION 2014 B219 — 228.

Counsel quoted the provisions part 4 (1) of the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 which provides as follows:
“A registered Estate Surveyor and Valuer shall be issued with a Seal and Stamp on registration by the Estate Surveyors and Valuers Registration Board of Nigeria (hereinafter referred to as, “the Board’).
All professional duties performed by or emanating from the registered Estate Surveyor and Valuer or under his hand shall bear the Seal and Stamp issued by the Board. The Seal and Stamp issued by the Board shall not be replicated under any circumstances.”
Also in part II 13(a) (b).
A registered Estate Surveyor and Valuer or firm shall not issue a valuation report under his registered number unless such valuation.
a. follows the prescribed standard set out by the Board; and
b. bears the Stamp and Seal issued by the Board.

On the strength of the law cited above, Counsel contended that EXHIBIT ANT 1 was not Stamped and Sealed which made ‘EXHIBIT ANT 1 to contravene part 4 (1) and (13 a & b) of the Estate Surveying and Valuation Registration 2014 which made PW II not to qualify as an expert or Estate Surveyor and the trial Judge ought not to attach any weight to same as a product of an expert. Counsel on the functions of an expert witness referred to the authority of All Nigeria Peoples Party and Anor v. Alhaji Saidu Nasamu Usman & 2 ORS (2009) ALL FWLR (Pt. 463) 1292 1342—1343.

Counsel also referred to the authority of Henry Tuah Mary v. Michael (2011) ALL FWLR (Pt. 590) 1366 AT (Pp. 1375—1376, PARAS H on the import of S. 57 of the Evidence Act and the place of opinion evidence by expert witness and submitted that it was wrong for the trial Judge to have admitted EXHIBIT ANT 1 and attached heavy weight to it and used it as basis for giving judgment to the Respondent. More so, there was no sworn deposition made by the PWII on 19/06/2016, therefore Counsel urged the Court to answer the issue in the negative and hold that EXHIBIT ANT 1 is not a product of expert and PWII and EXHIBIT ANT 1 should be expunged from the record.

RESPONDENT’S COUNSEL SUBMISSION
Respondent in response to Appellant’s issue three formulated his issue 3 which reads as follows:
Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of appeal and not tailored to the real issue of compensation in suit no. MHC/159/2011 and valid in law to allow this appeal.
It is the Respondent’s contention that Appellant’s issues 3 constitute a wanton prolixity and proliferation of grounds formulated and issues by the Appellant’s counsel in this appeal, are not tailored to real issue of compensation in suit No. MHC/159/2011 and this is fatal to the case of the Appellant. Counsel submitted that the main thrust of the Respondent’s claim before the trial Court is on page (307) of the record. Therefore gleaned from the standpoint of the Respondent’s claim, it is crystal clear that the Appellant’s issue three, constitutes exaggeration or proliferation of grounds and issues distilled, not accorded or have any bearing with the core issue in suit No. MHC/159/2011.

Counsel referred to the authority of Olaide Ibrahim v. S.A Ojomo & 3 Ors (2004) 4 M.J.S.Cg. 143 R.9 para. B and submitted that the Appellant’s ground formulated and issues distilled not having direct bearing with the sole issue of compensation constitute prolixity or proliferation of grounds of appeal and issues for Court’s determination. Counsel then urged this Court to accept this contention and discountenance the numerous grounds of appeal, inclusive of issue three, so proliferated, with other issues therein and disallow same as lacking in merit and substance, not having bearing with the sole issue before the trial Court.

ISSUE FOUR
Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5).

APPELLANT’S COUNSEL SUBMISSION
The complaint of Appellant by this issue is that the Respondent at trial Court claimed N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops and other sundry valuables on the Respondent’s family land without specifically pleading the economic crops and sundry valuables allegedly destroyed as well as value of the said damage. Counsel referred to the authority of Asman Man and Mech Ltd v. Spring Bank Plc (2012) ALL FWLR (Pt. 613) 1864 AT 1898-1899 paras G-C on the need to particularize special damages.

Counsel submitted that a cursory look at the Respondent’s Amended Statement of Claim shows the failure of the Respondent to particularize and strictly plead the said damages to the economic crops and sundry valuables to warrant the grant of N26,000,000.00 as special damage, as all Respondent made were sweeping statements. That the best the Respondent has done is to make reference in paragraph 9 of the amended statement of claim to the Estate Surveyor’s report. Counsel contended that this is not proper pleading and particularization of alleged acts of trespass done to Respondent’s land.

Counsel contended further that even the said Estate Surveyor’s report was only smuggled in while trial was underway and was made on the recommendation of the Respondent’s counsel. Moreover the said Estate Surveyor’s report is only an opinion of an expert and does not amount to strict proof of the act of trespass to Respondent’s land.

Counsel then relied on the authority of Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 AT 638 para. C-E and went further to submit that it is settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without proof, no special damages can be awarded.

Counsel also submitted that if various items are claimed for, the Respondent can only be entitled to be awarded any of those items of which sufficient evidence is available. However, where a Respondent sets out to adduce evidence in proof of special damage claimed by him and the evidence was deficient or unsatisfactory or rejected by the Court; that should put an end to that claim. That the learned trial Judge was not entitled to embark upon his own assessment of the special damages using his own conceived perimeter in place of evidence. Counsel relied on the authority of Horst Sommer & 2 Ors v. Federal Housing Authority (1992) 1 NWLR (pt. 219) 548 at page 560 at paras. E G

Counsel then rounded his submission on this issue by stating that no special damages were proved or could have been proved upon the pleadings and evidence adduced by the Respondent; thus, the award of Twenty Six Million Naira (N26,000,000.00) as special damages was unwarranted, unmerited, made in error and ought be set aside. Counsel urge this Court to hold that the Learned Trial Judge was wrong to have awarded special damages of N26,000,000.00 (Twenty Six Million Naira) only and resolve the issue in favour of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION
The Respondent did not adopt issue 4 of the Appellant but formulated issue 4 of his own to wit: Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed

On that note, Counsel while urging this Court to hold in the affirmative that Appellant’s issues 4,5 6 and 7 as constituted smacks of infraction of the Rule against approbating and reprobating submitted that gleaned from her conduct in suit the Appellant with her battered procedural image cannot be allowed in law to take advantage of her wrong act as demonstrated in her willful and inscrutable failure, omission or refusal to defend suit No: MHC/159/2011. That to do so will be tantamount to approbating and reprobating. Counsel referred to the case of Agbaregh VS Mimra (2008) All FWLR (Pt. 371) 1669, and submitted that this pretext, would manifestly be unjust and also portray the law as an instrument of injustice. Counsel then relied on the case of Agbidigbi VS Agbidigbi (1996) 6 SCNJ 105.

Counsel urged this Court to discountenance Appellant’s issues 4, 5, 6 and 7 as lacking weight in legal reasoning to support the case of the Appellant. That Appellant’s issues so distilled are not valid in law regarding the subject matter in this suit, and same is not deserving of invocation of the discretionary powers of this Court in his favour, when the Appellant as defendant failed, neglected and waived her legal right to defend the suit No. MHC /159/2011 as opposed to suits No. MHC/185/2012 and MHC/77/2011 which latter suits were not pending before the trial Court.

Counsel submitted that the Appellant’s issues are incurably invalid, absurd, misleading and not deserving of the unfettered discretionary powers of this Honourable Court in her favour. Counsel reminded his Court not to be oblivious of the well-known notorious equitable principles in our jurisprudence that says “Equity” protects the vigilant and not the indolent, and contended that this equitable doctrine becomes apposite or germane against the case of the Appellant in this appeal.

Counsel submitted further that this is so because from the genesis to revelation of suit No, MHC/159/2011 the Appellant as defendant never demonstrated any act of vigilance nor neither is she coming to equity with clean hands. Counsel referred this Court to the judgment of the trial Court on (pages 380-384 of the record) where the trial Judge painstakingly had painted a grim picture of several, ridiculous and inexcusable traits of over indulgences to the Appellant’s counsel, despite his numerous acts of in diligence, ranging from invention of strange and non-existing suits numbers, and abandonment of application on notice.

It is Respondent’s Counsel’s contention that these flaws are exacerbated by violent, flagrant and reckless disregard to the integrity of Court. For instance, the Appellant’s counsel took 21 days on his volition to file and adopt his final address yet failed, omitted or refused to do so. My Lords, above are manifest indicators from your Lordship, to agree that the Appellant failed the equitable test of being vigilant or coming to equity with clean hands

Counsel submitted again that by these numerous infractions above stated, this Court is urged to hold that the Appellant had waived his legal right to defend suit No. MHC/159/2011 and ought not to complain. Furthermore, on the requisite yardstick or standard of proving all civil cases being the balance of probabilities, it is on record that only the Respondent/plaintiff before the trial Court testified with his lone witness to prove his claim. As seen from pages 357-358 of record and pages 359-362 of the printed record. Therefore, it is not disputable that these testimonies from PWI and PWII were unchallenged.

Counsel on that note submitted that it is also the law that given a scenario as in the instant case, the law allows the trial Court to evaluate the unchallenged evidence of the plaintiff which was what the trial Court did in suit No. MHC/159/2011. Counsel relied on the cases of Odulaja VS Haddad (1973) 11 SC 53 and Omoregbe VS Daniel Pendor Lawani (1980) 4.S.0 108 and 117. That the Rules of procedure dictates that before a Judge before whom evidence is adduced by parties in all a civil cases comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both as properly captured and amplified by the trial Judge in his judgment of 6th February, 2017.

ISSUE FIVE
Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7).

APPELLANT’S COUNSEL SUBMISSION
On this issue, Counsel started by saying that Respondent has failed to prove his case to be entitled to an award of N31,000,000.00 (Thirty One Million Naira) only. By paragraph 12 (a) & (b) of the Respondent’s proposed amended statement of claim, the Respondent was claiming special damages of N26,000,000.00 (Twenty Six Million Naira) only and general damages of N5,000,000.00 (Five Million Naira) only. That by paragraph 3 of the Respondent’s amended statement of claim dated and filed on 19th November, 2014, the Respondent averred that his family members are 119 in number while on page 9 of the records particularly paragraph 2, the Respondent averred thus”
“That I have the consent of 124 family members and that of my counsel P.I Ackosseh Esq. of counsel to depose to this oath”.

Counsel submitted further that on page 11—12 of the records, there is a document titled “ANTIV LIST OF PERSONS NOT COMPENSATED OVER TRESPASS TO THEIR PARCEL OF LAND” which comprises of 123 persons while on pages 223-253 is a document emanating from Ngobar & Co., Estate Surveyors & Valuers the number of persons whom the valuation was carried out on their behalf are 156 in number. That it is equally worthy of note that the grand total of the valuation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-Five Naira, Twenty Six Kobo) only.

Counsel therefore contended that with all the inconsistencies listed, one wonders how the trial Court came to the conclusion that the Respondent has proved his case and awarded damages as per their paragraph 12 (a) and (b), as it is trite that where there are material inconsistencies in the case of a party, the Court will resolve same against the party. See Alhaji Jawando & Anor v. Madam Falilat Bakare (2006) ALL FWLR (Pt. 332) 1590 @ 1609.

Counsel submitted further that assuming but not conceding that EXHIBIT ANT 1 formed the basis for the decision now on appeal, another dispute that ought to arise is, who amongst the 156 persons in “EXHIBIT ANT 1” were part of the suit of the Respondent as the Respondent had hitherto stated, the number of Respondent he was representing to be 119 and confirmed same under cross-examination.

That it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment. Even where the defendant has failed to rebut the case of a plaintiff either by cross-examination or by defending the suit, the plaintiff (Respondent) was still duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence. Counsel relied on the authorities of SMAB Inter-Trade Ltd v. Bulangu (2013) ALL FWLR (Pt. 693) P. 2019 @ PP. 2033—2034 paras G-B and D. S.A.D.P.I v. Ofonye (2008) All FWLR (Pt. 402) 1068 at 1090–1091, Paras G–A on the duty of the Plaintiff to prove his case on its strength and not the weakness of the Defendant’s case.

Counsel then contended and submitted against the EXH ANT 1 ought to be admitted in evidence as same violates S. 83 (3) of the Evidence Act, and that the trial Court ought not to grant the reliefs of the Respondent as throughout the length and breadth of Respondent’s pleadings he did not show the extent of his land and that of the other Respondents, what quantity each Respondent has and the extent of damage as a result of trespass alleged to have been committed to the land. In other words, the Respondent was granted reliefs in respect of unpleaded facts before the trial Court. Counsel relied on the authority of Somorin v. Adekanbi (2012) All FWLR (Pt. 622) 1776 at 1796, Para C.

Counsel in rounding up his argument relied on the authority of Ogbeche v. Onoche (1988) 1 NWLR (Pt. 70) 370; Okoronkwo v. Chukueke (1992) 1 NWLR (Pt. 216) 175; Gari v. Seirafina (NIG) LTD. (2008) ALL FWLR (Pt. 399) 434 to submit that the Respondent failed to plead and prove the economic trees destroyed, and prayed this Court to resolve this issue in his favor and set aside the judgment of the lower Court.

The Respondent did not make submissions on this issue, but rather formulated issue 4 which he contended that the argument of the Appellant on issues 4, 5, 6, and 7 is tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of the reliefs claimed. I shall consider the submission of counsel on his issue 4 as his response to issues 4, 5, 6, & 7 of the Appellant accordingly.

ISSUE SIX
Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8).

APPELLANT’S COUNSEL SUBMISSION
Appellant’s contention by this issue is that it is legally wrong for the Learned Trial Judge to have awarded general damages of N5,000,000.00 (Five Million Naira) only to the Respondent after the learned trial Judge had awarded N26,000,000.00 (Twenty Six Million Naira) as special damages and as compensation for the same trespass alleged to have been committed by the Appellant on the land of the Respondent, as same amounts to double compensation. Counsel relied on the authority of Biliaminu Alao & Anor v. Inaolan Builders Limited (1990) 7 NWLR (Pt. 160) 36 at 54.

Counsel urged the Court of Appeal to answer issue No 6 in the affirmative and hold that the Learned Trial Judge was wrong to have awarded general damages of Five Million Naira (N5,000,000.00) only after awarding special general damages of N26,000,000.00 (Twenty Six Million Naira) only for the same injury.

ISSUE SEVEN
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 9).

APPELLANT’S COUNSEL SUBMISSION
The grouse of the Appellant by this issue is that when the pleadings and the sworn deposition/oral and documentary evidence of the Respondent are considered alongside with the facts of this case and the finding of the Learned Trial Judge, it is apparent that the judgment of the lower Court is against the weight of evidence. To show that the judgment of the learned trial Judge is against the weight of evidence Counsel submitted that:
a. By the Onamade v. ACB Ltd (1997)1 NWLR (Pt. 480) 123 at 145 at paras. C-D. Emegokwue V Okadigbo (1973) 4 SC 261, Odumosu v. ACB (1976) 11 SC 261, it is the law that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded, and the Respondent did not plead the economic crops and his special damages were not particularized
b. The Learned Trial Judge was carried away by the fact that the evidence of the Respondent at the trial was not challenged and therefore required minimal proof even on the face of material contradictions in the pleading of the Respondent and “EXHIBIT ANT 1”. The amount stated on assessment of compensation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-five Naira, Twenty Six Kobo) only in the valuation certificate purportedly issued by PW II dated 31st day of January 2012.

Counsel submitted that it is the law that when evidence is at variance with pleadings it goes to no issue and paragraph 12(a) of Respondent’s proposed amended statement of claim dated 19th day of November 2014 and filed the same date the Respondent claimed N26,000,000.00 as compensation that is in (EXHIBIT ANT 1) which is at variance with the pleading. That it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff that the plaintiff will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral unnecessary. Counsel relied on the authorities of Shell Petroleum Development (Nigeria) Limited v. ABBA (2005) ALL FWLR COMPANY (Pt. 257) 1533 CA and Martchem Industries (Nigeria) Limited v. M.F Kent (WA) Limited (2005) ALL FWLR (Pt. 271) 559.

Counsel submitted that the trial Judge shut his eyes to the material contradictions in the pleading and evidence at the trial Court and gave judgment to the Respondent who has not proved his case as required by Sections 131 and 132 of the Evidence Act, 2011. That the Learned Trial Judge was over-generous in the award of N31,000,000.00 damages without reason for the award. That the Learned Trial Judge failed to consider the apparent conflict in the N26,000,000.00 claimed as special damages in paragraph 12 (a) of the plaintiff’s proposed statement of claim and the assessment in EXHIBIT ANT 1. That the Learned Trial Judge would have dismissed the case of the Respondent that it has not been proved, as the trial Court was over-generous in granting general damages of N5,000,000.00, thereby occasioning Appellant’s grave miscarriage of justice.

As earlier stated, the Respondent did not adopt or formulate any issue to tie to ground 9 of the Appellant’s grounds of appeal which is argued by issue six, I shall consider his issue 4 which made reference to issue 7 argued by the Appellant as his response and argument on issue seven

RESOLUTION
ISSUE ONE
Whether the learned trial Judge was right to have admitted ‘’Exhibit ANT 1’’ in evidence in flagrant breach of Section 83 (3) of the Evidence Act 2011.
Section 83 (3) of the Evidence Act 2011 provides:
‘’Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’
The Supreme Court in U.T.C. (NIG) PLC V. LAWAL (2013) LPELR-23002 (SC) Pages 32-34 paragraphs D-A Per Kekere-Ekun, JSC stated:
‘’The complaint against Exhibits 4 and 5 is that A.K. Gadzama wrote the letters after the proceedings had commenced thereby rendering them inadmissible within the meaning of Section 90 (3) of the Evidence Law Cap. 39 Laws of Lagos State of Nigeria 1973, Which provides: ‘’Nothing in this Section shall render admissible as evidence and statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’ The provision is in pari materia with Section 91 (3) of the Evidence Act 1990 and Section 83 (1) of the Evidence Act, 2011 (as amended). A person interested has been described as a person who has a personal interest, financial, material or otherwise in the outcome of the proceedings. An ‘’independent person’’ on the other hand is a person who has no temptation to depart from the truth on one side or the other; a person not swayed by personal interest but completely detached, judicial, impartial and independent. In interpreting the provision, the Courts are enjoined to give the expression a narrow rather than a broad meaning. See: Gbadamosi v. Kabo Travels Ltd. (2010) 8 NWLR (Pt.668) 243; Peterside & Ors v. Wabara & Ors. (2010) LPELR-CA/PH/188M/2003 at 8 D-G; Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt.59) 84; (1987) 6 SCNJ 9 at 22. It has also been held that there must be a real likelihood of bias before a person making a statement can be said to be a ‘’person interested’’. A person acting in an official capacity is generally not considered to be a ‘’person interested’’.
In this appeal Exhibit ANT 1 the valuation report from Ngobar & Co., Estate Surveyors & Valuers was procured by the Respondent during the pendency of this suit the said Exhibit is dated 23rd day of January, 2012. See page 275 of the records, while this suit was filed on 10th day of May, 2011. See pages 1-6 of the records, this position was also stated by the learned trial Judge in his ruling at page 361 of the record where he said the document was made during the pendency of this suit, he ought not to have admitted the said document in evidence thus Exhibit ANT 1 having been procured by the Respondent and made during the pendency of this suit is in contravention of Section 83 (3) of the Evidence Act, 2011 and is hereby expunge from the records.

A wrongfully admitted piece of evidence is not sacrosanct, it is still subject to the closest scrutiny by this Court. The appellate Courts are under a duty to cut down and expunge any evidence that is wrongfully admitted. See OKONKWO OKONJI (ALIAS WARDER & ORS V. GEORGE NJOKANMA & ORS (1999) LPELR-2477 (SC) Page 46. Thus, Issue one is resolved in favour of the Appellant.

ISSUES 2 and 3 TAKEN TOGETHER:
ISSUE TWO
Whether the learned trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who was not the maker. And
ISSUE THREE
Whether the learned trial Judge was right to have treated ‘’Exhibit ANT 1’’ as a product of an expert when there was no such evidence before the Court that PW II was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent.

In the resolution of issue one, I expunge from the record Exhibit ANT 1 so any pronouncement made on issues two and three would be academic exercise, a fruitless effort, in other words, issues two and three are overtaken by the resolution made in issue one in essence issue two and three are lifeless. Appellate Courts do not entertain issues which will amount to embarking on an academic voyage.

ISSUE FOUR:
Whether the learned trial Judge was right to have awarded N26,000,000.00 Special damages when same was not pleaded and particularized as required by law.
It is trite that Court is strictly bound by the case presented to it as postulated on the pleadings of the parties. Thus parties are bound by their pleadings just as the Court seized of the matter is bound to make its findings only within the scope of the parties’ case as pleaded. It does not lie in the province or powers of the Court to make case for the parties.

Special damages are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the case that is, because of special circumstances or conditions. See AHMED & 2 ORS v. CBN (2012) 7 SC (Pt. II) 1 at 26. Special damages are such damages as the law will not infer from the nature of the act and do not follow in ordinary course but are exceptional in character and therefore they must be claimed specially and proved strictly. They denote those pecuniary losses which have crystallized in terms of cash and value in trial. See KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 at 90. Special damages are such that the law will not infer from the nature of the act complained of, they must be specifically pleaded and strictly proven, all the losses claimed on every item must be concrete in terms and value before trial. They do not flow in the ordinary course. See ANYAEJI MARY ANDREW V. MTN NIGERIA COMMUNICATIONS LIMITED (2016) LPELR-41181 (CA) Pages 14-15.

The reliefs sought by the Respondent at the lower Court against the Appellant as per his Amended Statement of Claim dated 19th day of November, 2014 have been reproduced earlier by this Court in the course of this judgment. The said reliefs can also be found on pages 1-2 of the Appellant’s Brief of Argument.

The reliefs as granted by the lower Court can be found on page 382 of the record where the learned trial Judge in his judgment stated:
‘’The plaintiff is entitled to the reliefs claimed in paragraph 12 (a) (b) and (c) of the amended statement of claim filed on 19th June, 2016. For avoidance of doubts, judgment is entered in favour of the plaintiff against the defendant in the sum of thirty-one million Naira (N31,000,000.00) only. The 23% interest is captured within the general damages awarded in the judgment sum.

A cursory look at the reliefs granted in Respondent’s favour in paragraph 12 (a), (b) and (c) of the said judgment at page 382 of the record shows that the Respondent’s claim granted was for special damages which was not particularize and strictly pleaded and was not proved. The law is settled that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proven with credible evidence. Without proof, the Court cannot award special damages. See HON.EZE HERBERT OSUJI & ANOR v. ANTHONY ISIOCHA (1989) LPELR-2815(SC) Page 12.

Where the Court below erred in assessment of damages by basing its award on wrong principles of law, such award would be interfered with by the appellate Court. In the instant appeal, the learned trial Judge with respect was not entitled to embark upon his own assessment of special damages using his own conceived perimeter in place of evidence, the amount claimed as special damages was not proved thus issue four is resolved in favour of the Appellant.

ISSUE FIVE:
Whether the learned trial Judge was right to have awarded the sum of N31,000,000.00 (Thirty one Million Naira) only Special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to the judgment of the honourable Court.

At page 382 of the record, the learned trial Judge in granting the reliefs sought by the Respondent held:
‘’The plaintiff is therefore entitled to the reliefs claimed as no defence has been validly filed before this Court or evidence adduced by the defendant’’

The position of the law as stated by the Appellant’s Counsel is that it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment, even where the defendant has failed to rebut the case of the plaintiff, the Plaintiff is duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence.
This Court in SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013) LPELR-21414 (CA) Pages 18-19 Per MBABA, JCA stated:
‘’The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet v. INEC (2011) All FWLR (Pt. 565) 203 ‘’The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.’’ Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) 124. But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proven the claim. Elias v. Omo-Bare (1982) LPELR-SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR-CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (Pt. 935) 160; see also Ogunyomi v. Ogundipe (2011) All FWLR (Pt. 594) 188, Where it was held. ‘’It is the duty of the Appellants as plaintiffs in the lower Court to prove their case…. And it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants.’’

The fact that the Appellant did not file a defence at the lower Court did not ease the burden on the Respondent to prove his claim Exhibit ANT 1 which was the valuation report was wrongly admitted by the lower Court as it was produced during the pendency of the suit in contravention of Section 83 (3) of the Evidence Act, the Respondent’s claim for the award of special damages against the Appellant at the lower Court for the destruction of economic crops was not proved. It is trite law that special damages must not only be specifically pleaded with relevant particulars but must be strictly proved with credible evidence. Without such proof, no special damages though pleaded can be awarded. See Alhaji Ahmadu Gari v Seirafina Nigeria Limited & Anor (2007) LPELR-8397 (CA) Page 32. The Respondent having failed to prove his claim by credible evidence at the lower Court this issue is hereby resolved in favour of the Appellant.

ISSUE SIX:
Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) General damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same.
The complaint of the Appellant on this issue is the award of double compensation against him in respect of the same trespass on the land.

Compensation is the remuneration or satisfaction for injury or damage of every description. For a party to be entitled to compensation it has to be proved that he suffered injury or damage to the satisfaction of the Court.

The settled position of the law which remains inviolate is that a Court will not award double compensation as damages against the same misdeed. See UNION BANK v. EMOLE (2001) 12 S.C.N.J 74 at 89. In ALHAJI ISIYAKU YAKUBU v. ADAMAWA STATE GOVERNMENT & ORS (2020) LPELR-51114 (CA) Pages 39-40 Per BAYERO, JCA Stated: ‘’The law frowns at award of double compensation. It is the law that where a party has been compensated fully under specific claims, it would be most inappropriate to compensate him again under general damages as that would amount to double compensation. It is an established principle that if a plaintiff recovers in full under special damages, he cannot be entitled to general damages for that would amount to double compensation. See the case of U.T.C. (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 136 at 184.’’ Flowing from the above it is wrong for the learned trial Judge to have awarded the sum of N5,000,000.00 (Five Million Naira) as general damages after awarding special damages of N26,000,000.00 as that was tantamount to double compensation. I resolve issue six in favour of the Appellant.

ISSUE SEVEN:
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?
Evaluation of evidence is the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA v. AJIBADE (2004) 17 NWLR (Pt.902) 356 at 379. In Mrs. ELIZEBETH IRABOR ZACCALA v. MR. KINSLEY EDOSA & ANOR (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D Per M.D. MUHAMMAD, JSC Stated ‘’It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.’’

It must be born in mind that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. I believe the best starting point towards a just determination of this issue is to examine Exhibit ANT 1 vis-à-vis paragraph 12 (a) of the Respondent’s amended statement of claim. The amount stated on assessment of compensation in Exhibit ANT 1 is N15,919,295.26 (Fifteen Million, Nine Hundred and Ninety Five Naira, Twenty Six Kobo) only in the valuation certificate tendered by PW II dated 31st day of January, 2012. See page 275 of the record. In paragraph 12 (a) of the Respondent’s amended statement of claim dated and filed on 19th day of November 2014 the Respondent claimed N26,000,000.00 (Twenty Six Million Naira) as compensation. Exhibit ANT 1 is at variance with paragraph 12 (a) of the Respondent’s amended statement of claim. When evidence is at variance with pleadings it goes to no issue.

An averment of fact in pleadings is not evidence and can never be so construed. It has to be proved by evidence. On this note, I agree with the Appellant that it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff he will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral evidence is unnecessary.

The Supreme Court in MARTCHEM INDUSTRIES NIGERIA LTD V. M.F. KENT WEST AFRICA LTD (2005) LPELR-1842 (SC) Pages 11-12 Per Oguntade, JSC (as he then was) Stated:
‘’The Court below in reacting to the very unsatisfactory manner in which the trial Court gave judgment in favour of the plaintiff said: ‘’I agree with the submission of the learned Counsel for the Appellant that even where the evidence is one way, in that the other party did not lead evidence in proof of averments in its statement of defence, the Court is not relieved of its bounding duty to consider and evaluate the body of evidence adduced by the plaintiff before ascribing probative value to the pieces of evidence tendered. The trial Court must ascertain that the evidence before it is credible, admissible and goes into issue before giving judgment to the plaintiff. It is not sufficient, even where the evidence is only one way, as in this case, to give judgment to the plaintiff by merely summarizing the evidence adduced. The learned trial Judge is required to ascribe probative value to the witnesses, review and evaluate the evidence tendered before him. It is only after this exercise that the plaintiff will be entitled to judgment: Okoebor v. Police Council (1998) 9 NWLR (Pt. 566) 534, 544-5; Haruna v. Salau (1998) 7 NWLR (Pt. 559) 653 and Nwabuoku v. Ottih (1961) All NLR 487, Balogun v. United Bank of West Africa (1992) 6 NWLR (Pt. 247) 336, 354.’’ I think that the Court below was right in the view it expressed in the passage reproduced above. Even if, as was the case here, the evidence in a case went in one direction in that it was unchallenged, the trial Judge is still expected to examine whether or not the unchallenged evidence was sufficient to establish the claims made by the party in whose favour the unchallenged evidence was given.”

In the present appeal, the learned trial Judge also awarded double compensation in respect of the sum claimed when he awarded the sum of N26,000,000.00 (Twenty Six Million) claimed by the Respondent as special damages which was not proved and the sum N5,000,000.00 (Five Million Naira) as general damages in respect of the same claim. See page 382 of the record, this is unwarranted, the law frowns at award of double compensation. See ALHAJI ISIYAKU YAKUBU V. ADAMAWA STATE GOVERNMENT & ORS (Supra) page 39. Taking all these factors into consideration it is glaring that the learned trial Judge did not properly evaluate the evidence before him thus issue seven is hereby resolved in favour of the Appellant.

Having resolved issues 1-7 in favour of the Appellant, it means that this appeal succeeds and is allowed the judgment of the Benue State High Court of Justice, Makurdi Judicial Division delivered by Hon. Justice M.A. KPAMBESE on the 6th day of February, 2017 in suit No MHC/159/11 is HEREBY set aside.
Parties are to bear costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in complete agreement with his reasoning and conclusions on all the issues distilled for determination.

Having resolved Issues 1-7 in favour of the Appellant it means that this appeal succeeds and is allowed. I also abide by the consequential order setting aside the decision of the lower Court as well as the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein.

My learned brother has properly in my respected view dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is meritorious and should be allowed. I shall make few comments for the sake of emphasis.

Under Issue One, the Appellant questions the propriety of the trial Court admitting “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011. Section 83(3) & (4) of the Evidence Act, 2011 provides thus:
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute is to any fact which the statement might tend to establish.
(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible
The import of the Section is that documents made during the course of proceedings are generally not admissible in evidence. However, there is a proviso therein which I believe will be suitably applied in resolving this issue; the document must be made by a person interested in the proceedings, and a person interested was defined in the case of UTC (NIG) PLC V LAWAL (2013) LPELR-23002 (SC) thus:
“Meaning of “person interested” a “person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in the legal sense, which imports something to be gained or lost.” See; Holton V. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance Trust V. Klifco Nigeria Ltd (2010) 13 NWLR (Pt.1211)307; (2010) 8 SCM 212.” Per ARIWOOLA, J.S.C.
The said “Exhibit ANT 1” was prepared and signed by Abu Jimin Umoru an associate in the Firm of Ngobar & Co. on the authority and recommendation of the Respondent in the cause of the proceeding. Then the exhibit was made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. The said exhibit was not made by the State Government officials who did so in the course of their official duties with nothing personal but purely official to even warrant the exception that Government officials doing their duties cannot fall into the category of persons interested, see B.B. APUGO V O.H.M.B(2016) 13 NWLR (Pt.1529) 206; PETERSIDE & ORS V WABARA & ORS (2010) LPELR-4847(CA).
I have gone ahead to produce Section 83(4) because even if the trial Judge in his erroneous finding believes for reasons unknown to our laws that “Exhibit ANT 1” is admissible, he would have averted his mind to the provision of Section 83(4) which is very clear and was not considered by the trial Judge. It was a selective and erroneous application of Subsection 3 without considering Subsection 4 and that is injudicious and made the decision arrived at perverse. Doing so made him fall into error. The document was made on the recommendation of the Respondent. A person not just interested but who stand to benefit from the content of the document. Therefore it was wrong to admit the exhibit in evidence.

It therefore follows as it is the law that, inadmissible evidence ought not be admitted even by mistake, where it is admitted, as in this case and the trial Court failed to expunge the said exhibit, this Court ought to expunge same, or better still consider the case on the basis of legally admissible evidence only. See ABUBAKAR VS. CHUKS (2007) MJSC 190 AT 217 OWONIYI VS. OMOTOSHO (1961) ALL NLR 304.

The Appellant objected to the admissibility of “EXHIBIT ANT 1”, even if the Appellant did not object to the admissibility, it is trite law that the admissibility of documents without objection does not foreclose the power of the Court to expunge it from its records. It is for this reason that the Supreme Court held in I.B.W.A. VS. IMANO LTD, (2001) 3 SCNJ 160 AT 177 thus;
“It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissibly, it has a duty generally not to act upon it but rather to discountenance it. So too if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence.”

More so, special damages are such damages the law will not infer from the nature of the act complained of. It is dependent upon exalt computation and calculation of figures from special items that need to be proved. Special damages by its nature must be particularized in the statement of claim and supported by evidence before the Court, see GAMBORUMA VS. BORNO (1997) 3 NWLR (PT.495) 530; MOMODU VS. UNIVERSITY OF BENIN (1997) 7 NWLR (PT. 512) 325, and ONYIORAH V ONYIORAH (2019) LPELR-49096(SC) wherein the apex Court Per RHODES-VIVOUR, J.S.C. held thus;
“Special damages must be specially pleaded and strictly proved by the claimant. To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.”

In this appeal, all the losses claimed on every economic tree and other items must be concrete in terms and value before trial, since the losses do not flow from the ordinary course of trespass. The Respondent claimed the sum of N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops on the respondent’s family land without specifically pleading the economic crops and others valuables allegedly destroyed and the value of the said damages caused. The Respondent failed to particularized and strictly plead with credible evidence, his claim for special damages.

I have gone through the length and breadth of the Respondent’s case, and at best the only evidence that the Respondent set out to establish his claim is the surveyor’s report that was smuggled in while the trial was underway. I have found that the said surveyor’s report “Exhibit ANT 1” was wrongly admitted by the trial Judge and any claim drawing life from the said exhibit must be dismissed.

It is for these reasons and others elaborately set out in the leading judgment that I, also find that the appeal is meritorious and is allowed. The judgment of the trial Court delivered by Hon. Justice M.A IKPAMBESE dated 6th day of February, 2017 is hereby set aside.