Inspector James Abah & Ors. V. Jabusco (Nigeria) Ltd. (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

This is an appeal from the decision of Benue State High Court of Justice (now the lower court) contained in the judgment of Hon. Justice E. O. Ogbole in suit No. MHC/36/95 delivered on the 23rd day of August, 1999.

By an amended statement of claim, filed by the leave of the lower court, the plaintiff (now the respondent) claimed against the 1st to 6th defendants (now appellants) in paragraph 19 in the terms hereinafter appearing:-

“19. Wherefore the plaintiff claims from the defendants jointly and severally (the 6th defendant being vicariously liable for the acts of the 1st – 5th defendants) the sum of N1,000,000.00(One million Naira) only made up as follows:-

1. A Special Damages

Cost price of the missing goods

as at December, 1994) N317,200.00

2. General Damages

(Inconvenience, assault, detention etc) N682.800.00

TOTAL N1.000.000.00”

The events leading to this appeal started on the 6th day of December, 1994, when a team of three Police Detectives, namely, Inspector Habu, Sergeant Iliya Zaki and Corporal Usman Danladi from ‘A’ Division. Jos, registered themselves at ‘A’ Division, Makurdi, for the purpose of conducting an investigation in Makurdi.

After registering themselves, they went to town and on their return they brought with them various items of electronic appliances and one Innocent Obiechena, a salesman of the respondent company.

The goods were items of sale in the respondent’s store which were called away by the purported detectives from Jos. It was alleged that Kenneth Nwoye, another salesman of the respondent was also taken away to ‘A’ Division, Makurdi where the goods were off-loaded and kept in the custody of the 1st to 5th appellants. The two salesmen, who later testified before the lower court as PW1 and PW2 respectively were also detained behind the counter. They were, however, later released with instruction to report the following morning. In the evening of the same day, the detectives came back and removed the goods from ‘A’ Division. Makurdi with the words that the matter or case was being transferred to S.I.I.B. Makurdi.

When the duo of PW1 and PW2 reported at ‘A’ Division on the 7th day of December, 1994. as directed, they were told that their case had been transferred to S.I.I.B. and the goods had already been taken to S.I.I.B. Enquiries at S.I.I.B. revealed that no such case was so transferred and no electronic goods were brought to S.I.I.B. The case was reported to the Benue State Commissioner of Police (6th appellant), who instituted an orderly room trial against the 1st to 5th appellants. In an effort to recover the goods, the respondent through the PW5 sponsored trips to Jos and another place but the goods were lost and there was no trace of them.

It was when all efforts to recover the goods failed that the respondent took out a writ of summons against the appellants herein, upon which amended statement of claim and amended statement of defence were filed. Respondent called five witnesses while four witnesses testified for the appellants. At the end of addressees by counsel on both sides, the learned trial Judge, in a considered judgment delivered on the 23rd day of August, 1999, found for the respondent and awarded total damages of N667.200.00. made up of N317.200.00 for special damages and N350.000.00 as general damages, against the appellants jointly and severally (the 6th appellant being vicariously liable).

The present appeal is against that judgment. The appellants originally filed five grounds of appeal and by the leave of this court, they filed an amended notice and grounds of appeal with eight grounds incorporating the five original grounds of appeal. The appellants have distilled five issues for determination of this court in their brief of argument, namely –

(i) Whether the trial Judge was right in awarding special and general damages to the plaintiff in this case.

(ii) Whether the trial Judge had jurisdiction to sit on appeal over his earlier order that expunged an unpleaded pieces of evidence and prohibited the plaintiff from bringing amendment on it so as to rebuild her case on the said piece of evidence and whether his doing so occasioned a miscarriage of justice.

(iii) Whether the 6th defendant was rightly joined in the case and whether or not the trial Judge was right in holding the 6th defendant vicariously liable.

(iv) Whether on proper evaluation of evidence before him, the trial Judge could be said to be right in finding for the plaintiff on the weight of over contradictory evidence which could not support the said decision.

(v) Whether on the totality of the evidence adduced and the existing law, the trial Judge was right when he said that the defendants were negligent in their duty when the “offence” of negligence was neither raised in the pleadings nor in evidence, and whether a court can grant reliefs not sought.

The respondent on the other hand, has identified three issues for determination in this appeal, viz:

1. From the pleadings and evidence, did the respondent prove its case on credible legal evidence as to be entitled the damages awarded in its favour. Grounds 1,2,5,7 and 8.
2. Was it proper for the court to have allowed the application for amendment when appellants were served with the application and they neither opposed same nor did they file any counter-affidavit. Ground 3.
3. Is the 6th appellant vicariously liable for the tortuous acts of the 1st – 5th appellants as to be properly made a party to this (sic) proceedings. Ground 4 and 6.

Before I proceed to the consideration of the issues and the submissions of the learned counsel on same, it is pertinent to draw attention to ground 8 of the amended notice of appeal. It was ground 1 of the original notice of appeal. It is the omnibus ground of appeal which reads thus –

“Ground (8)

The whole decision of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

This ground of appeal, as reproduced here above, is incompetent in civil appeal cases such as the instant case. It is unpardonable that in 1999 when this appeal was filed, learned counsel for the appellants never adverted her mind to the rules of the Court of Appeal, 1981 and a plethora of decided cases where this error has continually been highlighted. It is certainly inconceivable that in 1999 when the notice of appeal was filed, learned counsel who filed same, and who was at that time the Deputy Director of Civil Litigation in the Benue State Ministry of Justice, could claim ignorance of the rules of the Court of Appeal, 1981 and cases decided prior to and after the year 1981, in which this error has repeatedly been highlighted. See Retduwas v. Jwan (1992) 8 NWLR (Pt. 259) 358 and Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt. 96) 239 at 243 for some of the cases decided since the rules came into force in 1981. As for the cases decided prior to the promulgation of the Court of Appeal Rules, 1981, it suffices to cite Elijah Okezie v. The Queen (1963) 1 All NLR 1; (1963) 1 SCNLR 24 where Ademola, C.J.F. observed, at page 3, that:-

“This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence.”

The ground of appeal set forth in the notice of appeal as ground 8 is appropriate only in a criminal appeal as Okezie’s case (supra) has amply demonstrated. Counsel entrusted with the duty of prosecuting appeals should as much as possible acquaint themselves with the rules of the court.

Ground 8 of the notice of appeal in this case is incompetent. It is not only bad but it is incurably bad and it is accordingly hereby struck out. Consequent upon this, issue (iv) and all submissions relating thereto in the briefs of argument shall be discountenanced in this judgment, except where the submissions relate to other issues in the briefs.

Now back to the issues formulated by the parties, I will base my judgment on the issues formulated by learned counsel for the appellants. They are more comprehensive and all-encompassing.

The issues as identified by learned counsel for the respondent can easily be treated within those of the appellants.

On issue two, learned counsel for the appellants started her argument by quoting a passage from page 68, lines 4 to 13 of the record in the terms hereinafter appearing –

“A piece of evidence went thus …

“On 07/12/1994 at 9 am we reported at ‘A’ Division as directed. On reaching there, surprisingly, we did not see the goods again. We asked them and they told us that the goods together with the case had been transferred to the SIIB. We went back to SIIB, Makurdi where we asked and they told us that there was no case like that at SIIB. We went back to ‘A’ Division, Makurdi and told them that we had been to SIIB and we were told the goods were not there … ”

Learned counsel explained how she had objected to the admissibility of this piece of evidence on the ground that it was not pleaded. She further explained how learned counsel for the respondent had conceded to the objection, applying for an adjournment in order to put his house in order. She also objected to the application for an adjournment and the learned trial Judge sustained the two objections and expunged the evidence from the record. Her complaint now was that the learned trial Judge subsequently allowed an amendment which now allowed the same piece of evidence to be used in the case. She submitted that this amounted to the learned trial Judge sitting on appeal over his earlier ruling or order. She submitted that it was wrong for the learned trial Judge to have allowed the application for the amendment. The issue was now raised that the motion for the amendment was moved and granted without service of same on the appellants. He submitted that a court of law cannot and should not sit on appeal over an order made by it and set same aside as the court is already functus officio.

As to the likelihood of this court construing the amendment of the statement of defence of the 8th day of October, 1996 as amounting to consent to the amended statement of claim, learned counsel for the appellants submitted that the Supreme Court and this court have held that parties cannot confer jurisdiction on a court where none previously existed. He submitted that the amendment of the statement of claim had occasioned gross miscarriage of justice. She cited in support of her various submissions, the following authorities, namely:- Pastel Ind. Ltd. v. Nzimiro (2001) 6 NWLR (Pt. 710) 565 at 571; Anyaegbunam v. A.-G., Anambra State (2001) 6 NWLR (Pt.710) 532 at 546; Onwuchekwa v. C. C. B. (Nig.) Plc (1999) 5 NWLR (Pt. 603) 409; Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275; Akere v. Governor of Oyo State (2002) FWLR (Pt. 122) 57 at 77;

Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 665 and Aidoko v. Sule Anyegwu (2003) FWLR (Pt. 49) 1439 at 1446.

Responding to issue two, learned counsel for the respondents submitted that the lower court acted well within its power when it allowed the amendment of the statement of claim. He submitted that the lower court was wrong in the first place, to have expunged the evidence of PW1 as it did, because parties are enjoined to plead only facts and not evidence by which those facts are to be proved. He submitted that the evidence of PW1 was only to explain how he came to know that the goods had got missing from ‘A’ Division, Makurdi as pleaded in paragraph 16(1) of the statement of claim. He relied on Adewole v. Adesanoye (2004) All FWLR (Pt. 23) 1397 at 1413; (2004) 12 NWLR (Pt.887) 435; Ezemba v. Ibeneme (2004) All FWLR (Pt. 223) 1786 at 1812; (2004) 14 NWLR (Pt.894) 617 and the case of Okagbue v. Romaine (1982) 5 S.C. 133 where Idigbe, JSC. cited with approval, the dictum of Lord Denman, C.J. (as he then was) in Williams v. Wilcox AD & EL 8,315 at 331; (1838) All ER 25, as follows:-

“It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegation …”

Learned counsel submitted that the piece of evidence expunged for failure to plead same needed not to be pleaded as only facts and not evidence are allowed to be pleaded. He submitted, as learned counsel for the appellant had done, that the piece of evidence was not inadmissible. He further submitted that the appellant cannot be heard to complain since they have consented to the amendment by amending their own statement of defence whereby they joined issues with paragraph 14(b) to 14(e) in their amended statement of defence of the 8th day of October, 1996.

The law generally, is that an application to amend pleadings can be made anytime before judgment. There are certain times when amendments are allowed on appeal. There cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be a substitute for the evidence required in proof of the facts pleaded. In the high courts, cases are fought on pleadings and the law is that parties are bound by their respective pleadings.

See Ohmiami Brick & Stone (Nig.) Ltd. v. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 260. For these reasons, it is within the power of the court to grant an amendment even if the amendment would add to the existing cause of action or substitute therefor a new cause of action provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings. Not only is a court entitled to make formal amendments, it indeed has a duty to do so and this duty remains whether there is a formal application before the court or not and whether it is in the trial court or any of the appellate courts. See Sadiku Osho & Anor. v. Michael Ape (1998) 6 SCNJ 139, 152; (1998) 8 NWLR (Pt.562) 492, and Ipadeola v. Oshowole (1987) 5 SCNJ 200; (1987) 3 NWLR (Pt.59) 18.

It is in the light of the principles of the law and the authorities in support thereof as enumerated here above that I am baffled by the order of the learned trial Judge refusing an adjournment to allow the respondent to bring an application for amendment. The law is certainly on His Lordship’s side in this respect to allow an adjournment. I am not surprised, therefore, that he subsequently acceded to a formal application for the amendment of the statement of claim. It is against this amendment that the appellants are now complaining. Their complaint can be classified into two, namely:-

1. That the learned trial Judge has no jurisdiction to revisit the issue of amendment after expunging the offending piece of evidence from his records; and
2. That the respondent has been allowed to rebuild its case.

The short and cogent reply by the respondent is that only facts are allowed to be pleaded and not the evidence by which such facts are to be proved. The objection raised by the appellants was that the piece of evidence was not pleaded. Neither the learned counsel who handled the respondent’s case as at that time nor the learned trial Judge adverted his mind to the fact that, in law, evidence is not allowed to be pleaded. Learned counsel for the appellants has grossly misconceived the state of our law on pleadings. Although. I agree with learned counsel that a court is not allowed to review, rehear or reverse its earlier order, paragraph 14 which was later sought to be amended contained sufficient fact upon which the piece of evidence allegedly expunged by the learned trial Judge can be based without any amendment to the paragraph. The general rule of law is that no court has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up. See Udo Idion Akpan Ekerete v. Udo Eke of Ikot Eyo 6-10 NLR 118. The situation envisaged in this authority will make the court to be functus officio in relation to the issue on which the order was made. The issue of amendment is a continuous one, especially, in a trial court. The court has no power to close the door of amendments before the judgment and any pronouncement by a trial court which is suggestive of closing the door of amendments, to the parties before it, is made without jurisdiction and can be set aside by the same court. That was exactly what the lower court had done in the instant case when it subsequently allowed amendments to both the statement of claim and statement of defence.

As to the complaint that the respondent has been allowed to rebuild its case, the appellant has not demonstrated how the case of the respondent was rebuilt. If there was no amendment to paragraph 14 of the statement of claim, what was already pleaded was sufficient to allow the evidence that was allegedly expunged. It is an elementary rule of pleadings that when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or evidence sustaining the allegation, as held by the Supreme Court in G. S. Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467 at 491. It is interesting to note that both DW 1 and DW2 gave evidence that to their knowledge, the Police Officers from Jos removed the goods in question to S.I.I.B., Makurdi. It is even more interesting to know that after the amendment of the statement of claim, the appellants sought for and obtained leave to also amend the statement of defence. It is curious to discover that in paragraph 5 of the amended statement of defence, issues were joined with the respondent in respect of paragraph 14(a), (b), (c), (d), (e). (f), etc of the amended statement of claim. It is the duty of a party to object timeously to an irregularity apparent on the face of a process before taking further steps in the proceeding. The respondents did not raise objection to the amendment. They did not stop at not raising objection to the amendment of paragraph 14 of the statement of claim, they went on to amend their own statement of defence joining issues with the respondent in respect of the same paragraph 14. They waited until evidence was proffered in respect of the facts on which they have joined issue and then objected. The law is not an ass afterall. Parties shall not be allowed to approbate and reprobate at the same time. Objection should not be raised just for the sake of it, it is always good to concede some intelligence to one’s opponents.

After all learned counsel admitted in her brief of argument, that the piece of evidence in respect of which the objection was taken was not inadmissible. If it is not inadmissible one wonders why the appellants want it excluded from evidence by not wanting the statement of claim to be amended.

It is late in the day for the appellants to now complain of the propriety or otherwise of allowing the statement of claim to be amended because they have taken fresh steps after the amendment by amending their own pleadings so as to bring same in line with the amended statement of claim. See Jadcom Ltd. v. Oguns Electrical (2003) FWLR (Pt. 183) 165; (2004) 3 NWLR (Pt.859) 153 at 171 per Muhammad, J .C.A. at pages 183 – 184 when he held thus:-

“I will however agree with learned counsel for the respondent in his submission that the appellants failed to raise an objection to the validity of the writ and the mode of service timeously and that the appellants took steps in the proceedings thus waiving their right to protest. ”

Finally on this issue, the appellants made efforts to impress it upon the court that the admission of the evidence has occasioned “gross” injustice but it was in vain. I resolve this issue (issue two) in favour of the respondent.

I will treat issue three next. This issue queries the propriety of joining the Commissioner of Police, Benue State as the 6th defendant at the lower court and his being found vicariously liable to the respondent for the acts of the 1st to 5th appellants.

For the appellants, it was submitted that the amended statement of claim did not disclose any involvement of the 6th appellant in the matter that led to this case. There was also nothing in the evidence to show that the police command in Benue State was aware of the operation of the three police officers from Jos. It was also submitted that the 1st to 5th appellants are not servants or employees of the 6th appellant who only has constitutional operational control over them by virtue of section 215 of the Constitution of the Federal Republic of Nigeria, 1999. It was further submitted that the employer of the 1st to 5th appellants is the Police Service Commission. It was finally submitted that it was wrong for the lower court to have found the 6th appellant vicariously liable in this case. Reliance was placed on Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) 735 at 743, In Re: Mogaji (1986) 1 NWLR (Pt. 19) 759.

In response to this issue, it was submitted for the respondent that the 6th appellant was properly joined as a party. Reference was made to the case of Oyakhire v. Obaseki (supra) where it was held that the question of vicarious liability was not a matter to raise only at the stage of address. It was submitted that by the rules of the court, every party is enjoined to raise in his pleadings all material defences and facts which he intends to rely upon in proof of his case. Attention was drawn to the amended statement of defence wherein the issue of joinder or vicarious liability was not raised. It was submitted for the respondent that the purpose of pleadings is to put the other party on notice of what case to expect and not to take him by surprise. Reliance was placed on P.R.P. v. INEC (2004) 9 NWLR (Pt.877) 24; (2004) All FWLR (Pt. 209) 1071 at 1086.

Relying on this court’s decision in FGN. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt.798) 162 (2002) FWLR (Pt. 92) 1749, 1771, it was submitted that where a defendant relies on a special defence, such a defence has to be specifically raised and pleaded. On the issue of vicarious liability, it was submitted on the authority of Oyakhire v. Obaseki (supra) that a plaintiff has a choice to sue either the Commissioner of Police in his official designation or the Inspector-General of Police or the Police Service Commission as the disclosed principal jointly and severally with other tort feasors whichever course he considers more advantageous.

I have gone through the entire record of this appeal together with the processes filed in the lower court and discovered that the appellant did not raise the issue of vicarious liability of the 6th appellant until at the stage of the final addresses before that court.

This issue was neither raised in the amended statement of defence, nor was evidence adduced in respect thereof. The same applies to the issue of joinder of the 6th appellant now being raised for the first time on appeal, I am completely in agreement with learned counsel for the respondent that this approach offends all known tenets of pleadings, and that if the approach is allowed to stand, the respondent would be taken by surprise as the whole case of the appellants would have been changed drastically from what was presented in the lower court. There cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be a substitute for the evidence required in proof of the facts pleaded. See Obmiami Brick & Stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260. In Mr. Moses Bunge & Anor. v. The Governor of Rivers State & 5 Ors. (2006) 12 NWLR (Pt. 995) 573, the Supreme Court held at pages 598 – 599 that:-

“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will and indeed must confine his evidence to those issues; but the cardinal point is the avoidance of surprise.”

In the High Court, cases are fought on pleadings and the law is that parties are bound by their pleadings. See Saliba v. Yassin (2002) 4 NWLR (Pt.756) 1 at 19-20; (2002) FWLR (Pt. 94) 168 at 183 where it was held, per Katsina-Alu, JSC, that:-

“A party cannot without necessary amendment urge a case different from one raised in his pleadings.”

In the instant case, the issues of joinder of the 6th appellant as a defendant in the action and that of his vicarious liability were not raised either in the amended of statement of defence or the evidence led by the defence. The two points or issues are being raised for the first time before this court. To do this, leave of this court must first be sought and heard. An appeal court will not entertain issues that are fresh and not raised and decided before the court below without first obtaining the leave of the appeal court. Any fresh issue raised for the first time on appeal without leave will be discountenanced.

In the instant case, since the leave of this court was not sought and heard, the issues of joinder of the 6th appellant and his vicarious liability are not competently raised and will be discountenanced. See Idiok v. Stale (2006) 12 NWLR (Pt. 993) 1 at 24 – 25.

The effect is that this issue (issue three) is resolved in favour of the respondent.

In the alternative, my decision on the issue will be the same by virtue of the decision of this court in Oyakhire v. Obaseki (supra) to the effect that:-

“The plaintiff had a choice to sue either the Commissioner of Police in his official designation, or the Inspector General of Police or the Police Service Commission as the disclosed principal, jointly and severally with other tort feasors whichever course he considers more advantageous. It is all well and good for the Commissioner of Police, even if he had given evidence, to say that he is not vicariously liable for the delict of the appellant. Much as the Police Service Commission or the Inspector General of Police may claim immunity from process, it is clearly the law that there is no vicarious indemnity in English Law and the Commissioner of Police cannot hope to escape by that route.”

This now brings me to issue five of the appellants’ brief of argument. The complaint here is that the 1st to 5th appellants were held to be negligent when they allowed the police officers from Jos

whether fake or not, from removing the respondent’s goods from its store to ‘A’ Division, Makurdi from where the said goods finally disappeared. It was, therefore, submitted for the appellants, that the 1st to 5th appellants have acted within the police age long custom of registering police detectives from outside the Command who wish to carry out investigation within the Command. It was submitted that the evidence of DW1 and DW2 in this regard remain uncontradicted and should have been accepted by the learned trial Judge, citing in support the Supreme Court decision in Oforlete v. The State (2000) 12 NWLR (Pt. 681) 415 at 436. Definition of negligence in Black’s Law Dictionary, 7th Edition by Bryan A. Garner was cited at page 1056. Learned counsel for the appellants also cited the case of Techno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 1 NWLR (Pt. 639) 150 at 166, while submitting that the registration of the Police Officers from Jos by the 1st to 5th appellants was what every reasonable Police Officer could do guided by the consideration that it was normal in the practice of police to do so. Learned counsel for the appellants also relied on Makwe v. Nwuko (2001) 14NWLR (Pt.733) 356; (2001) FWLR (Pt. 68) 1, 16 where the Supreme Court laid down the essential ingredients of actionable negligence. She argued that the three ingredients must co-exist. She submitted that the respondent herein did not, by evidence, establish the duty of care owed her by the appellants and how the duty was breached. It was submitted for the appellants that the orderly room trial proceeding, exhibit D, was wrongly admitted in evidence as it was not certified as required by sections 111 and 112 of the Evidence Act. She cited Karimu Olujinle v. Bello Adeagbo (1988) 2 NWLR (Pt.75) 238; (1988) 4 SCNJ I, 10 and 11. It was submitted that besides the exhibit D offending sections 111 and 112 of the Evidence Act, the orderly room trial did not meet the requirement of the Commissioner of Police review process as it was in evidence that it was not reviewed. It was also submitted that the learned trial Judge failed to properly evaluate the available evidence hence he erroneously came to the conclusion that the appellants were negligent.

She urge that the finding of the learned trial Judge be interfered with, citing Okolo v. Uzoka (1978) 4 SC 77 at 86 and Leko v. Soda (1995) 2 NWLR (Pt. 378) 432 in support. It was finally submitted for the appellants that the issue of negligence having not been pleaded by the respondent, it was wrong for the learned trial Judge to have gone ahead to declare the appellants negligent, since a court of law cannot award a relief not claimed. Reliance was placed on Awoniyi v. Registered Trustees of AMORC (2000) 10NWLR (Pt. 676) 522 at 539 and 544.

In response, Oba Maduabuchi, Esq., learned counsel for the respondent, submitted that on the pleadings and evidence, the respondent has proved its case.

Again, this issue fails within the scope of a case to be determined on the basis and state of the pleadings. The respondent pleaded in paragraphs 8, 9,10,11,12, 13a, 14a-141, 15, 16, 17 and 18 in the following terms:-

“8. On the 6th day of December, 1994 some men purported to be policemen from ‘A’ Division Police Station, Makurdi, Benue State went to the office/store of the plaintiff at No. 20 Ali Akilu Street, Makurdi, Benue State and carted away various types of electronic instrument and equipment valued altogether the sum of N317,200.00 (Three hundred and seventeen thousand two hundred Naira) only being the purchase prices expended by the plaintiff.

9. The same persons also removed various invoices and receipts evidencing purchase of some of the electronics carried by them. At the trial, the plaintiff shall found and rely on the invoice which was not removed by the defendants but which covers greater bulk of the items issued at Onitsha by Image Electronics Ltd.
10. The men went to the office/store of the plaintiff with a 505 Saloon Car, parked the electronics into the car together with the sales attendants of the plaintiff’s company and left for ‘A’ Division Police Station, Makurdi.
11. At the ‘A’ Division Police Station of the Nigerian Police, Makurdi, the electronics were off-loaded and put under the custody of the 1st – 5th defendants while the salesman Messrs. Innocent Obiechenna and his brother Mr. Kenneth Nwoye were arrested and detained. The electronic equipment and or instrument carted away by the men to ‘A’ Division are:

(a) One Sharp Coloured Television 14BSC valued N26,000.00

(b) Sharp Coloured Television 14BM N26,000.00

(c) One Sharp Coloured Television 14DSC N27,000.00

(d) One Panasonic Coloured TV. 14LDM N28,500.00

(e) Two Sharp Video Players N10 N48,000.00

(f) One Daewoo Video Recorder E101SDX N28,000.00

(g) Two Akai Video Player VSP 120 N46,000.00

(h) One Toshiba Video Player B2 N22,500.00

(i) One Aiwa Video Player E10S0K N22,000.00

(j) One Philip Steamer Iron N1,700.00

(k) One Tobico Radio Cassette N 12,500.00

(l)One Butterfly Zig-zag Sewing Machine N30,000.00

(m) One National Pressing Iron N4.000.00

N317.200.00

12. The detained sales attendants of the plaintiff’s company were released on bail after some beating and torture by the 1st – 5th defendants.

13(a) The persons who removal (sic) these items from the plaintiff’s store were later claimed by the defendants to have come from ‘A’ Division Police Station, Jos on enquiry for an alleged offence of being in possession of goods suspected to be stolen. But they did this with the cover, co-operation and assistance of the 1st – 5th defendants who received the goods and infact detained

the salesmen in their station.

13(b) The three men or persons who are claimed to have come from Jos also gave their names as Inspector Habu Bello; Sgt. Iliya Zaki and Cpl. Usman Danladi according to the 1st – 6th defendants and as contained in the letter of introduction they came with.

14(a) At the time the plaintiff’s salesmen were released on bail at about 7 p.m. on 6th December, 1994, the goods were parked behind the counter at ‘A’ Division, Makurdi, Benue State by the 1st – 5th defendants.

14(b) After the salesmen of the plaintiff (named above) were released on the evening of 6th December, 1994, they were instructed by Inspector James Abah to report back on the 7th December, 1991 at 9 a.m.

14(c) On reporting at the ‘A’ Division Police Station, Makurdi by 9 a.m. on 7th December, 1994, the salesmen, namely Innocent Obiechinna and Kenneth Onwe discovered that the goods were no more at the ‘A’ Division.

14(d) When asked, the salesmen were informed by Inspector James Abah that the goods and the case have been transferred to the SIIB, Makurdi for further investigation.

14(e) When they salesmen went to the SIIB on that same 7th December, 1994, they were told that there was no case like that there at SIIB. The salesmen went back to the ‘A’ Division to report that nothing like that exists at SIIB.

14(f) Not being satisfied with reports from Inspector James Abah and his collegues (sic) at ‘A’ Division of Nigeria Police, Makurdi, the salesmen led by the Director’s wife went to the Commissioner of Police (6th defendant) to report the matter.

14(g) The 6th defendant then detailed the then Officer-in-charge of General Investigation (whose name is not immediately known) SIIB, to commence investigation of the matter. The OIC General Investigation took the Director’s wife, and the plaintiff’s salesmen to the ‘A’ Division where the Director who just returned that morning from his journey met them on hearing what.

14(h) At the ‘A’ Division, the DPO explained what happened to the O/C General Investigation from SIIB, the plaintiff’s Managing Director, Sir John Obichukwu and his wife and others present adding that their investigation reveal that plaintiff’s goods were removed by policemen from Jos on investigation. He called Inspector Emmanuel Ochelafu to get the desk diary while Inspector Lawrence Agbre got out the file containing the letter they came with from Jos. The DPO then firmly assured everybody that their mission was genuine and instructed the aforementioned two Inspectors who were actively handling the matter to give photocopies of the desk diary where entities (sic) of the goods were made and the introductory letter they came with from Jos to Sir John Obichukwu for purposes of convincing plaintiff that there was no cause for alarm.

14(i) At this point, the O/C SIIB then went back to the S.I.I.B. with the two salesmen, John Obichukwu and Micheal Oguguo where their statements were recorded and subsequently the 1st to 5th defendants were arrested and detained on the orders of the Commissioner of Police when they discovered that the men who came from Jos were fake policemen.

14(j) When the Commissioner of Police discovered that the then O/C, General Investigation (whose name is not readily available) was not handling the matter with seriousness, CSP Habeeb Awolabi was then detailed to handle the 1st to 5th defendants and to conduct orderly room trial which commenced on 24th and ended on 27th December, 1994. At the end of the trial and precisely on the 27th December, 1994, the Managing Director of the plaintiff company and the plaintiff’s salesmen who were invited to see CSP Habeeb Awolabi, went there and were informed that the orderly room trial had ended.

CSP Habeeb Awolabi then instructed one of this junior officers to give a photocopy of the proceedings to Sir John Obichukwu to satisfy him that the affected policemen were adequately punished.

14(k) The Managing Director of the plaintiff subsequently met with the 6th defendant on several occasions who kept promising the plaintiff that something was being done on their part to ensure that plaintiff does not suffer any loss. That was after the orderly room trial had concluded.

14( 1) The plaintiff believes and coupled with the orderly room proceedings to the affect that the defendants were negligent as a result of which the plaintiff has suffered loss and damages and total set back in business at this hard times in Nigeria.

15. However, it was revealed by the defendants to the Managing Director and staff of the plaintiff that the three persons whose names are contained in paragraph 13(b) above went through ‘A’ Division of Nigerian Police, Makurdi, submitted a letter to them dated 28th November, 1994 No. NP/JS/P/VOL.178/94 and infact their visit and activities were adequately covered and registered by the 4th defendant Cpl Clement Ukange. At the trial, the plaintiff will rely on the letter of 28th November, 1994 No. NP/JS/P/VOL. 178/94 and the desk diary or register for 6th December, 1994 both kept by the defendant. Notice is hereby given to the defendants to produce them at the hearing of this suit.
16. When the plaintiff protested through its managing Director to the commissioner of Police (6th defendant) the following events happened and some vital information unfolded:

(i) Plaintiff’s goods enumerated in paragraph 11 above had disappeared to unknown destination from ‘A’ Division Police Station, Makurdi where 1st – 5th defendants took custody of them.

(ii) The 6th defendant did tell the plaintiff their investigation reveal that the persons from Jos were fake policemen.

(iii) The 1st – 5th defendants were subjected to orderly room trial by the 6th defendant who delegated a senior Police Officer Mr. Habeeb Awolabi (CSP) to conduct and preside over the trial. the trial which started on the 24th December, 1994 amended on 27th December, 1994. The plaintiff’s staff testified at the trial.

(iv) The allegations against the 1st – 5th defendants were at the orderly room trial were among others negligent conduct, the 1st – 5th defendants were found guilty of the allegation while the 5th defendant was recommended for a discharge by the presiding officer. At the trial, the plaintiff shall found and rely on the proceedings of the orderly room trial.

(v) The owner of the vehicle used in conveying the plaintiff’s goods to the ‘A’ Division was subsequently arraigned before Magistrate Court 4 in Makurdi.

(vi) Notice is hereby given to the defendants to produce at the hearing the proceedings of the orderly room trial dated 27th December, 1994 and signed by CSP Habeeb Awolabi.

17. The plaintiff who have suffered loss and damage made several approaches tot eh 6th defendant with the hope of being compensated for the loss it has suffered as a result of the 1st – 5th defendants, negligent conduct which facilitated the perpetration of the incident leading to this loss. Nothing positive was forthcoming from the 6th defendant, and even after receiving a letter from plaintiff’s counsel dated 10th January, 1995. The letter will be founded upon at the trial. Notice is given to defendants to produce same.
18. The plaintiff has suffered economic loss, time wasted, risk of running about looking for its goods and has its staff detained and tortured by the 1st – 5th defendants for no justifiable cause. The plaintiff went to Jos, Ankpa, with policemen looking for these goods at plaintiff’s expense.”

In response to these, the appellants, in their amended joint statement of defence, pleaded in paragraphs 4, 5(a) – 5(g), 6(i) 6(v), 7(a) – 7(d) thus:-

“4. The defendants deny paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the amended claim and shall, at the trial required the strictest proof of same.

5(a) Sometime on or about 1st December, 1994 some three persons, namely; Insp. Habu Bello, Sgt. Hya Zaki and Cpl. Danladi went to ‘A’ Divisional Police Station, Makurdi with a letter introducing them as Police Officers from ‘A’ 8iv. Police Station, Jos, Plateau State Police Command who were in Makurdi on investigation.

5(b) The said men were not in police uniform and after showing their identity cards, they booked their presence in Makurdi town with the ‘A’ Div. Police Station on the strength of the letter of introduction and left. The said introductory letter shall be founded upon at the trial.

5(c) At all times material to this suit, the three police officers mentioned in paragraph 5(a) above were/are not attached to ‘A’ Div. Police Station, Makurdi.

5(d) The Plateau State Police Command and Benue State Police Command (under which the ‘A’ Div. Polic Station, Makurdi is) both have different geographical areas of operation and they operate or act independently of and distinctly from each other.

5(e) It is usual and normal for police officers from a different command who are on investigation turn in another command area to register their presence with any police station in that area where they are to carry out investigation. This is to authenticate that they have come officially for the investigation. The defendants belief that the three men were policemen from ‘A’ Div. Police, Jos and had no reason to suspect them.

5(f) Apart from merely registering their presence in Makurdi with ‘A’ Div. police station, Makurdi, the defendants did not assist or cooperate with the three persons from ‘A’ Div. police Station, Jos (aforementioned) in anyway or manner whatsoever in their investigation activities.

6(i) They were not with the three policemen from Jos on 6/12/94 where they went to the plaintiffs shop/store and so they are not in a position to say if they removed some invoiced from the store. The plaintiff shall be put to the strictest proof of the allegation. On 6/12/95, the men from Jos aforesaid brought some electronics and two boys (whose names were not known to the defendants before but who were latter known to the sales boys of the plaintiff) to ‘A’ Div. Police station, Makurdi and informed the police that they were through with their mission and that they would take the goods and the boys to SIIB, Makurdi for further investigation. They left the same date with the good as and the sales boys.

5(ii) The plaintiff’s sales boys aforesaid by names Innocent Obiechenna and Kenneth Nwoye were never arrested, beaten or tortured and detained by the defendants as they were taken along with the goods by the men from ‘A’ Div. brought and no statement was recorded from them by the defendants.

5(iii) At the trial of this suit, they (defendants) shall contend that the procedure normally adopted (sic) by police generally (including themselves) whenever they are involved in the investigation of a case ids for them to arrest the suspects, keep them behind the counter, record statements from them and no release or detain them as the case may be.

5(iv) The (defendants) are not in apposition to know the numbers, types and values of the items brought in a vehicle (not known to them) by the men from Jos and the sales attendants to the ‘A’ Div. Police Station, Makurdi but shall put the plaintiff to the strictest proof at the trial.

7(a) The orderly room trial conducted on the orders of the 6th defendant in respect of the rest defendants in this case was purely for administrative purpose and was subject to the approval, review or rejection of same by the 6th defendant.

7(b) The proceedings of the orderly room trial presently is not endorsed in any shape or form by the 6th defendant.

7(c) The defendants are still serving police officers with the Nigeria Police Force.

7(d) The plaintiff has not suffered any economic loss, or any loss at all occasioned by the conduct of the defendant. The defendants shall contend at the trial of the suit that they acted reasonably and justifiably in the circumstances. ”

From the pleadings reproduced here above, it will be observed that there was nothing left undenied by the appellants including the orderly room trial on which the respondent based his claim of negligent conduct. The denial in respect of the orderly room trial was total as the appellants averred that there was never an orderly room trial, stating that the orderly room trial proceeding pleaded by the respondent was obtained by fraud. Since it was pleaded by the appellants that no orderly room trial was ever conducted, the notice to them, in the respondent’s pleadings to produce the original of the proceeding met a brick wall. None was produced. It was when the photocopy of the proceedings of the orderly room trial was produced and tendered by the respondent that it dawned on the appellants that they had to shift ground. Its admissibility was vehemently opposed but the learned trial Judge, rightly, accepted it in evidence as exhibit D. Faced with stark reality, the appellants shifted positions in the face of exhibit D, both the DW1 and DW2 now decided to give evidence in contrast to what is contained in that exhibit, contrary to their pleadings. A person who chooses to make telling lies his vocation should endeavour to make remembrance his main hobby, otherwise he will get himself exposed for what he truly is, a LIAR!

Among the issues that came to fore from exhibit D is the fact that the 1st to 5th appellants helped the three police officers to off-load the electronic goods from the vehicles and put them behind the counter.

The law on pleadings is clear and settled. What is traversed must be proved by evidence and any evidence which is at variance with the facts pleaded goes to no issue. The defence now being put forward that the orderly room trial was not reviewed by the 6th appellant is belated and goes to no issue, as what I have before me in the pleading was that no orderly room trial was ever ordered or

instituted. The opposition to the admissibility of exhibit D on the ground that it was not certified is a mere ploy to stultify the course of justice. The appellants had notice to produce the original but refused to do so. PW5 sought for the original but was told that since the matter was already in court, the original or certified copy could not be given to him. By giving evidence at variance with the amended joint statement of defence, the appellants are presumed to have abandoned their line of defence as pleaded. Apart from the general denial that the 6th appellant did not order an orderly room trial, he was not called to testify to that effect. Where parties have joined issues on pleadings, each party is required to prove his averment which have not been admitted by offering evidence or eliciting evidence from the opponent through cross-examination. See Honika Sawmill (Nig.) Ltd. v. Mary Okojie Hoff (1994) 2 SCNJ 86 at 98; (1994) 2 NWLR (Pt.326) 252. In Federal Capital Development Authority v. Alhaji Musa Naibi (1990) 5 SCNJ 186 at 195 – 196; (1990) 3 NWLR (Pt.138) 270 at 281 it was held that:-

“Pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse.”

Also at page 196, the Supreme Court held that:-

“If the defendant does not give evidence in support of his pleadings, the averments therein are taken as having been abandoned for they stand as no more than mere averments which have not been supported.”

Quite apart from exhibit D, the evidence of DW1, DW2 and DW3 shows clearly that the circumstances leading to the safe custody and the eventual release of the respondent’s goods revolved only around the 1st to 5th appellants. Both the DPO and the DCO of the Police ‘A’ Division, Makurdi were not involved. What we have at hand now is that the DPO and his assistant were screened out of the business since the goods were said to have been brought after both of them had closed for the day. The goods were eventually released in the absence of the two most senior police officers in the division.

This presents a curious situation to a discerning mind and the learned trial Judge cannot be faulted for finding the 1st to 5th appellants negligent. He is indeed on firm ground and I see no reason to interfere with his findings.

In the circumstances of this case, the 1st to 5th appellants did not exercise the standard of care that a reasonable prudent police officer would have exercised in a similar situation. One would expect the 1st to 5th appellants to have put the DPO in full picture right from the 1st day of December, 1994, when the alleged officers from Jos were said to have been registered. They were registered without indicating the nature of investigation they came to conduct and were let loose to the town. From exhibit D and the evidence of PW1 and PW2, it is very clear that the goods were released to those officers from Jos in the absence of PW1 and PW2. It beats one’s imagination how police officers from another command would say they were transferring a case from a division that registered them to SIIB. where they were not registered and they would be allowed to go away with the goods in the absence of the purported suspects. It does not sound like Nigeria Police. Nigeria Police we know is more intelligent and more careful and diligent, moreso when the purported suspects who were brought along with the goods had just been released on bail with instruction to report back the following morning. It was the same date after the PW1 and PW2 had been released (6/12/1994) that the goods were released to the men allegedly from Jos.

The denial by the appellants that they detained, beat and torture PW1 and PW2 is also contrary to the tenure of exhibit D which I consider as the measurement by which the truthfulness of the witnesses of the appellants can be judged. Of course, the learned trial Judge did not believe this and I agree with him.

One crucial point in the entire saga was that those who carted away goods from the respondent’s store had introduced themselves to PW1 and PW2 as officers from ‘A’ Division Headquarters, Makurdi, and to give credence to this, the goods were taken to Police ‘A’ Division, Makurdi where the 1st to 5th appellants helped those men to off-load the goods and thereafter took the goods and PW 1 and PW2 into their custody. The learned trial Judge believed the evidence of the respondent on this point based on the fact that the appellants in their pleadings and evidence admitted that the three men who carted away the goods proceeded to the respondent’s store from ‘A’ Division, Nigeria Police Station, Makurdi. I agree with him that no further proof was required of facts already admitted.

Where facts are admitted, no evidence is admissible in proof of those facts. See Honika (supra) at page 98 and section 75 of the Evidence Act. The respondents herein patently bears no burden.

This issue (issue five) is resolved in favour of the respondent.

Now coming to issue one, Mrs. Vera Venda, Director, Public Prosecution, Benue State, for the appellants submitted that the amount of N317,200.00 awarded by the lower court was not proved to be the exact price of the goods alleged to be missing and the evidence led to prove the prices of the items listed in paragraph 11 of the amended statement of claim created inconsistencies and contradictions within itself thus rendering it weak and of little weight and value. She also submitted that the evidence was at variance with the pleadings and ought to have been disregarded. It was further submitted that the prices appeared unreasonably outrageous in the year 1994 as same prices could not even be obtained in retail market despite ever-increasing inflation as at 2005 when the brief was filed; moreso when no independent witness was called to testify as to the prices of the goods. It was submitted for the appellants that this being a claim for special damages, it ought to have been strictly proved and this, the respondent has failed to do. It was further argued that award of damages without proof is a nullity. Learned counsel for the appellant relied on Francis Eseigbe v. Friday Agholor & Anor. (1993) 12 SCNJ 821 at 96; (1993) 9 NWLR (Pt.316) 128; Oceanic Bank Int’l (Nig.) Ltd. v. G. Cizitex Industries Ltd. (2000) FWLR (Pt. 4) 687 at 694; (2000) 6 NWLR (Pt.661) 464; and Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 511 at 529; (2000) 14 NWLR (Pt.687) 252.

As regards the award of N350,000.00 as general damages, learned counsel for the appellants submitted that the award was made in error, the learned trial Judge having completely misconceived the law relating thereto. It was submitted that the award was made for inconveniences, assault and detention of PW1 and PW2 who were only witnesses in this case, and that witnesses are not entitled to damages in law, because this claim is founded on tort and therefore borne out of personal injury.

Regarding this issue, Oba Maduabuchi, Esq., learned counsel for the respondent submitted that the award of damages in the total sum of N661,200.00 by the learned trial Judge was perfectly in order.

He submitted that the respondent did not only call five witnesses, it also tendered exhibits in support of its averments in the pleadings.

He referred to the evidence of PW1 from page 64 and his cross-examination at page 89 of the record of proceedings and submitted that PW1 was not asked a single question from the shop/store. He also referred to the testimonies of both PW2 and PW5 starting from page 91 and page 105 respectively. He demonstrated to the court that at the close of the examination-in-chief of each of these two witnesses, no single question was put to either of them, under cross-examination regarding the price or value of the goods. He submitted that the evidence of PW5 tallied with the testimonies of PW1 and PW2 before him. He submitted that the learned trial Judge was right when he awarded the sum of N317,200.00 as special damages as claimed by the respondent, as the courts are enjoined to act based on evidence placed before them by the parties and where evidence is led by an adverse party, and the same is unchallenged and uncontradicted either by cross-examination or by producing adverse evidence to debunk that which was produced by the other party. He cited Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144; (2004) FWLR (Pt. 212) 1666, 1745. Learned counsel for the respondent further submitted that the failure on the part of the appellants to cross-examine the PWs amounted to acceptance of paragraphs 11, 17 and 18 of the amended statement of claim.

As to the sum of N350,000.00 awarded as general damages, it was the submission of the learned counsel that the evidence led by the respondent supported, paragraph 18of the amended statement of claim. He emphasised that the award was not made to the witnesses. He submitted that the complaint of the appellants was not that the amount awarded by the lower court is either excessive or inadequate or that it was not merited. Their complaint was that the award was made in favour of witnesses and not the respondent. He relied on Kachalla v. Banki (2006) 8 NWLR (Pt.982) 3M; (2006) All FWLR (Pt. 309) 1400 at 1438; and Ezekiel v. Westminster Dredging (Nig.) Lid. (2000) 9 NWLR (Pt.672) 248; (2001) FWLR (Pt. 60) 1564 at 1577, while submitting that where a party lays claim to an amount certain in figure and the other party does not take exception to it, the amount shall be adjudged to the claimant. He finally submitted on this issue that the appellants’ grudge against the award of damages is neither for its inadequacy nor excessiveness but for its impropriety.

The issue has been narrowed down by the submissions of the learned counsel for the respondent. Five witnesses testified for the respondent and none of them was asked a single question as to the value of the missing goods. There is a long line of authorities that where the evidence of a witness is not inadmissible in law and is uncontradicted and unchallenged by the opposite party who had the opportunity to do so, it is always open to the court siesed of the proceedings to act on the unchallenged evidence before it and accept it as the true version of the case it seeks to support. See Matthew Kehinde Babalola v. Alhaji M. O. Badmus- Wellington (1998) 11 NWLR (Pt. 572) 167 at 176. In Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136 at 159 the Supreme Court held that:-

“When in a claim for damages the plaintiff pleads and gives evidence in support of his claim, and his evidence is uncontradicted, the trial court should accept the evidence unless there is something inherent in the evidence which disproves it.”

See also American Cyanamid Company v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt.171) 15: (1991) 2 SCNJ 42 at 50-51 and 53: Alhaja Sabalemotu Ayinke v. Alhaji Muniru Lawal & 3 Ors. (1994) 7 NWLR (Pt. 356) 263 at 275: and Obi Obembe v. Wemabod Estates Ltd. (1977) 5 SC 115 at 140. Since the appellants did not cross-examine the respondent’s witnesses as to the value of the missing goods, the learned trial Judge was right in accepting the uncontradicted and unchallenged evidence and in making the award of N317 ,200.00 as special damages.

Another point taken by the appellants was that special damages should be strictly proved. This expression – strictly proved needs some clarification. Counsel in her submission seems to have equated strictly proved with proof beyond reasonable doubt as in criminal matters. There is no such requirement here. In E. K. Odulaja v. A. F. Haddad (1973) 11 SC 357, the Supreme Court, per Irikefe, JSC (as he then was) had this to say at page 361:-

“We are in no doubt that the distinction between proof of general damage as opposed to special damage is a matter of law. The distinction is manifest from the following two English decisions –

(a) Stroms B. A. Bolag v. Hutchison (1905) AC 515 and British Transport Commission v. Gourley (1956) AC 185.”

His Lordship continues at page 362 thus:-

“We are of the view that strict proof in the above context can mean no more than such proof as would lend itself to quantification or assessment.”

In British Transport Commission (supra), Lord Goddard held at page 206 that:-

“In an action for personal injuries, the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in future.”

From these authorities, strict proof in relation to special damages means no more than a proof that will easily lend itself to substantially exact calculation of the damages or loss suffered. In the instant case, since the respondent’s witnesses were not cross-examined and the appellants did not bring an independent witness to testify as to the value of the missing goods, the learned trial Judge acted correctly in accepting the uncontradicted and unchallenged evidence of the respondent. He has done exactly as the trial Judge did in Adel Boshali v. Allied Commercial Exporters Ltd. (1961) 4 All NLR 917; (1961) 2 SCNLR 322, as approved by the Judicial Committee of the Privy Council. The Supreme Court has reinforced the Privy Council’s decision in Boshali (supra) in Obi Obembe v. Wemabod Estates Ltd. (1977) 5 SC 115,

40. Strict proof therefore means such proof as would readily lend itself to quantification or assessment, and no more. In Elijah Kosile v. Amusa Olaniyi Folarin (1989) 3 NWLR (Pt.107) 1 at 12, (1989)4 SCNJ (Pt. II) 198, the Supreme Court held at page 206 that:-

“Proof of special damage is not radically different from the general method of proof in civil cases. It is equally proved on a balance of probability. Where the plaintiff pleads the special damage with particularity and gives some evidence of it and the defendant docs not challenge or contradict the evidence given, he has discharged his onus of proof and, unless the evidence is of such a quality that no reasonable tribunal can accept it, it ought to be accepted. This is because where the evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof.”

In the instant case, the respondent has discharged its onus and bears no burden with regard to the issue of special damages.

On the award of general damages in the sum of N350,000.00, the appellants are not questioning the excessiveness or inadequacy of the award. Their grouse is that it was awarded in favour of the

PW1 and PW2. It has not been demonstrated where the learned trial Judge said the award was in favour of the witnesses. The appellants cannot say that the respondent has not suffered what it alleged to have suffered and on which it was not challenged or contradicted. It is in evidence that the respondent’s servants were detained and made to be reporting at the Police ‘A’ Division Headquarter in Makurdi. It is also in evidence that the respondent had to organise search for its missing goods by sponsoring the police to visit different locations.

And most importantly, the respondent’s evidence with regard to general damages, like that of the special damages, remains unchallenged and uncontradicted. It is not being alleged that the amount awarded is unreasonable.

This issue is also resolved in favour of the respondent.

In sum, this appeal is bereft of any merit whatsoever and it is accordingly hereby dismissed in its entirety.

The decision of the Benue State High Court contained in the judgment of Honourable Justice E. O. Ogbole delivered on the 23rd day of August, 1999 in suit No. MHC/36/95 is hereby affirmed.

The respondent shall have the cost of this appeal which I assess at N 10,000.00.

---

Other Citations: (2007)LCN/2317(CA)