In The Court of Appeal

(Enugu Judicial Division)

On Wednesday, the 2nd day of June, 2010

Suit No: CA/E/164/2003

Before Their Lordships

 Between

 And

MOHAMMED. L. TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Enugu State High Court, delivered on 24/9/2003 in the consolidated suit Nos. E/348/88 and E/249/88 in which all the reliefs sought for, except relief No.5 were granted.

In the Enugu State High Court (herein referred to as "the trial Court") the plaintiffs, claimed against the defendant the following:

1. An order for the immediate release/surrender of the plaintiffs' documents of title held by the defendant as security, to the plaintiff.

2. N6,633,772.00 (Six million, Six hundred and thirty-three Thousand, Seven hundred and seventy-two Naira only) as special damages for breach of contract occasioned by the acts of the defendant against the plaintiffs, or

IN THE ALTERNATIVE,

N10,000,000.00 (Ten Million Naira) general damages as compensation for all the losses so inflicted on the plaintiffs by the acts of the defendant.

3. N56,329.46 (Fifty-six thousand, Three hundred and twenty-nine Naira, fourty six naira) and interest at 18% from the date of wrong debiting until judgment delivered.

4. N100,000.00 (One hundred thousand Naira only) as general damages for breach of contract.

5. An order that the interest calculated and debited against the plaintiffs in respect of the sum of N56,329.46 was wrongly done and was not a proper charge on the account of the plaintiffs.

6. Release of the property (sic) of the plaintiffs deposited with the defendant as security for loan.

The defendant also filed action against the plaintiffs for payment of the over-draft facilities relating to the same transaction. Thus the two suits were consolidated.

The plaintiffs filed their Statement of Claim and reply to the Statement of defence filed by the defendant. The defendant therefore joined issues with the plaintiffs by filing the statement of defence to the action.

Thereafter, the action went on for trial. The plaintiffs, through their Managing Director, gave evidence and called one other witness, while the defendant called one witness who abandoned, in part his evidence, ship mid stream and the court did not conclude his testimony in-chief not to talk of cross-examination. And this led the defendant to apply to the trial court, to arrest the judgment and allow him to call another witness for their case. The trial Court refused.

The summary of the facts giving rise to this appeal is that, both plaintiffs maintained and operated... separate and distinct Bank Accounts with the appellant Bank Between 1978-1979, the 2nd respondent Company was in the process of executing 6 valuable contracts for various other concerns (see details at page 76 L. 21 - page 77 L. 1-8 of the Amended Record filed on 10/3/06), with the secured financial backing of the United Bank for Africa (U.B.A) Ltd. Then the appellant induced the Managing Director (M.D.) of the respondents (PW1 at the trial) to move their Accounts to the Appellant Bank, with the promise to avail the respondents with over draft facilities to the tune of N800,000.00 (Eight Hundred Thousand Naira), shared in one ratio of N300,000.00 and N500,000.00 between the 1st and 2nd respondents respectively. As at the time of these negotiations the UBA Ltd which had been the 2nd respondent's financiers in its projects was holding its title documents as collateral for such advances from the Bank and it was agreed that on the formalization of the arrangement with the appellant Bank, the respondents will close their separate accounts with the UBA Ltd, and withdraw the said collaterals accordingly and then pass them on to the appellant Bank as part of the backing for the over-draft of N800,000.00 agreed upon.

Towards this arrangement, the appellant Bank paid off the outstanding debt of the 2nd respondent with UBA Ltd to the tune of N56, 329. 46k (in two installments of N11,000.00 and 45,329.46k) and also advanced the sum of N20,000.00 to the 1st respondent towards the first stage of its Hotel facilities expansion.

In return for these advances, the two respondents' Companies gave in various title documents alongside those collected by the appellant from UBA Ltd, as security by way of a Legal Mortgage in favour of the appellant's Bank. Soon after the appellant Bank received and took in the aforesaid title documents of developed Properties in Enugu, the Appellant Bank reneged on its obligation for the balance of the overdraft facilities, and, further, went on to debit the accounts of the respondent companies consistently with a Compound interest over the years, notwithstanding the Bank's breach in the transaction had in effect demobilized and destroyed the business operations of the respondents concerns, both of whom were cash strapped and left with no other collaterals to seek any alternative funding loan. 

On the persistence of the appellant Bank to redeem this actions, despite several requests orally and in writing, the respondents instituted suit No. E/348/88 in reaction to which the appellant Bank filed suit No. E/349/88 both of which were subsequently consolidated for hearing and determination.

Hearing on the 1st suit were repeatedly frustrated by the Appellant Bank action. The hearing was to start on 21/2/2001 but did not start until 11/10/2001. The hearing of plaintiffs case ran through 18/10/2001, 28/11/2001 12/12/2001 and 23/1/2002 at the end of which counsel for the defence asked for adjournment for cross-examination of the witness (PW1). The cross-examination commenced on 30/1/2002 and on the adjourned date of 2/5/2002, defence Counsel was absent. An adjournment then made to 16/5/2002 when the PW1 completed his evidence with his Re-examination. PW2 stepped in on 28/5/2002, after which PW1 again re-testified on the 2nd consolidated suit No. E/349/88 on 17/6/2002, and was cross-examined on 28/6/2002, bring in the plaintiffs case to a close.

The defence took an adjournment to open its case on 17/7/2002 but was again unable to proceed. Then hearing was adjourned to 18/7/2002, 25/7/2002 and 31/7/2002 for defence and address as follows: On 18/7/2002 counsel for the defence came up with another excuse for adjournment, for which the case was adjourned to 25/7/2002 when the said counsel apologised for the absence of the defendant from the Court, and gave some excuses. The hearing then was further adjourned to 31/7/2002 when the Defence opened its case with DW1. Midway in his evidence in-chief, further hearing was adjourned to 5/11/2002, on which date the counsel for Defence wrote for a stand down till 11.00 am but when the case was called later, after that time, the said counsel was nowhere to be seen and the matter was adjourned to 6/11/2002 when the defence evidence continued, and at a point, the Defendant counsel asked for adjournment to enable the DW1 bring the documents pleaded but which he did not come to court with, because the Manager in whose custody these documents were kept travelled before the witness could come back from the previous day sitting. The case was again adjourned to 28/11/2002 on which date the same counsel after amending parts of their defence pleadings brought back DW1 to continue his evidence and at the end of that day's hearing, the matter was adjourned and later resumed on 25/3/2003 with the defence coming up with another application for adjournment. The application was granted and the case was adjourned and on 12/5/2003 the matter was resumed at which the defence openly confessed her frustration and asked for one more adjournment to conclude the defence case. The request was granted but on 17/6/2003 to which the hearing was adjourned, yet another defence application was presented to the court to enable the defence to get at the DW1 to conclude the case failing which the defence will definitely close its case and renders its address.

The application for adjournment was opposed but the court granted it with caveat that, "if on the adjourned date the defence is not ready to conclude its evidence the court will take it that the defence has at this stage of the proceedings decided to abandon its defence. The court will do no other thing other than to close the case of the defence for it to take the address of counsel."

Despite this warning, the court on the next date of 25/6/2002 acceded the defence request for adjournment, which was on health grounds, until 10/7/2003 when the defence counsel informed the court that, the defence is closing its case and relies on the evidence already put forward by the defence witness who did not even make himself available for cross-examination as he did not even conclude his evidence in-chief.

Thereafter, the defence open its address, which was replied to by the plaintiffs in the consolidated cases on 15/7/2003 with the defence opting for another date for reply on law against 21/7/2003. On that date the defence after hedging with some rather strange applications involving one Adolphus Nwankwo, eventually delivered the reply on point of law, and judgment in the two consolidated suits was adjourned from that 21/7/2003 to 24/9/2003. The ensuring theatrical continued on that judgment dated 24/9/2003 when as the record shows at page 120, that, one Ike Akaraiwe Esq. (the present counsel in the appeal) appeared and informed the court that he had just been briefed to come into the matter, and had filed a motion on notice to arrest the judgment.

From what appears in the records, the former defence counsel resisted the interjection, yet the court conceded Akaraiwe Esq the right to move his motion, the Ruling of which was delivered, dismissing the same. 

It was thereafter that the judgment was read, in which the court after analyzing the evidence, came to the conclusion now the subject of this appeal.

Being dissatisfied with the decision of the trial court, the defendant (herein referred to as the appellant Bank) appealed to this court on three grounds of appeal as contained in its Notice and Grounds of Appeal dated 4/3/2004 and filed on 25/3/2004. With the leave of this Court granted on 10/5/2007 two more additional grounds of appeal were filed on 7/12/2005 and were deemed filed with effect from 10/5/2007.

In accordance with the rules of this Court, both Appellant Bank and the respondents filed their respective Briefs of argument. The Appellant on 8/11/2006 filed its Brief of argument and on 2/11/2007 an extension of time to file its brief was granted and same was deemed filed with effect from 2/1/2007. The Brief of argument contains four issues distilled from the five grounds of appeal for determination. They are as follows: 

a) Was the trial court not in error when it did not suspend delivery of its judgment in order to allow the appellant call additional witness since appellant's, only witness jumped ship mid-stream and was unavailable to testify further?

b) As a corollary, was the Appellant Bank not denied fair hearing thereby?

c) Was the trial court not in error when it granted to the Respondent the entire special damages of N6,633,772.00 (Six Million Six Hundred and Thirty-three Thousands Seven Hundred and Seventy-two Naira) in the light of (a) and (b) above and without strict proof thereby?

d) Did the trial court not misdirect itself when it held that the Appellant's Exhibits Z, Z1 - Z3 were unhelpful because nothing was placed before the court to show how the figures (contained in the exhibits) were arrived at?

The respondents on their own part, and with leave of this court granted on 31/5/2007, filed their brief of argument and deemed as properly filed and served with effect from 31/5/2007. In their brief of argument two issues from the five grounds of appeal were formulated for consideration in this appeal. The issues read:

a) Whether there was any feature (sic) in the proceedings to warrant the complaints of the absence of fair-hearing against the appellant Bank at the hearing.

b) Whether the damages awarded can be justified on the evidence before the court.

Taking into consideration the circumstances of this appeal, including the grounds of appeal filed, the issues formulated by each party to this appeal, the issues as formulated by the respondents are direct and can answer the issues raised by the appellant. I shall therefore determine this appeal on the issues formulated by the respondents.

ISSUE NO. 1 OF THE RESPONDENTS

In its brief of argument, the appellant Bank argued that, by refusing to grant appellant Bank's application to suspend delivery of its judgment to enable appellant Bank's call one more witness, in addition to its only witness who testified and did not complete his evidence-in-chief before abandoning the Court, the appellant Bank was denied fair hearing. That the trial court failed to take into consideration before refusal the newness of the counsel in the matter and the purpose of the application itself which intended, if granted, to fill the lacuna created by DW1's suspicious disappearance from the trial court. It was further argued by the appellant Bank that, irrespective of a number of adjournments granted in this matter to the previous counsel to the appellant Bank, the demand of justice required the court's discretion be exercised in favour of the appellant Bank since DW1's suspicious misconduct/disappearance from the court, will lead to no witness whatsoever for the appellant Bank's defence. It was also argued that, refusal to grant the application, had the effect of visiting the sins of previous counsel on the litigant, notwithstanding previous counsel having closed her case and addressed the court. This act of refusal also amounted to a denial of a fair hearing. It was argued further that, the trial court's refusal was predicated upon its desire not to further delay the suit, after having started de novo in the trial court and having suffered delays at the instance of the appellant Bank. It was further submitted that speedy disposal of cases should not be in a manner that will deny a litigant his right of fair hearing. That hearing a matter on the merit should not be trampled over the fast lane. It was finally submitted by the appellant Bank that to have given a bench ruling by the learned trial judge, on the motion praying the trial court to suspend delivery of its judgment, without going into chamber to consider authorities cited, and to follow up that bench ruling immediately with the judgment, indicated that the learned trial judge had made up his mind, was evidently irritated and consequently biased against the appellant.

In response, the respondents submitted that the complaints of the appellant Bank raise two components issues pertaining to:

(a) the said interjection of another counsel (Akaraiwe Esq.) in the proceeding, and

(b) the merits of the application for one more (or another) witness, and

2. The blanket plea of denial of fair hearing in the circumstances of the case.

In respect of (a) and (b) above, they submitted that the first counsel to the appellant Bank has been Miss C.C. Echetebu and she protested the undue interference with her brief in the case and she has every reason to see that incursion as an abuse of judicial process. And notwithstanding that interference, yet the trial court reading offered accommodation thereto for arguments on the application which application was refused on the authority of Bob Manuel vs. Briggs (1995) 7 NWLR (Pt.409) 537, on Merits. The procedure evolved, said the respondents, accepted as strange and alien to our jurisprudence. 

On the second arm of the application to Wit; to call a vital witness, the respondents submitted that the records is emphatic on the fact that the Defence counsel had since 21/7/2003 closed their case and addressed the court, therefore, the application was not asking for the defence to recall DW1 to complete his defence but rather for another witness to be brought in without as much stating the so called vital nature of his testimony. That the Court's tolerance in that regard was boundless, but in accord with the requirement of justice, and the case of Akume Vs. Ezikpe (2001)8 NWLR (Pt.916) 547 at 556-7 was referred to in support of this point. They finally, submitted that the issue of fair hearing raised in the appeal merely flies a kit for a bird and cannot but misconceived. That the sins derivable from the said conducts were clearly that of the appellant Bank and had nothing whatsoever to do with the counsel in the case. 

Having stated the submissions of both the parties to this appeal, the question is whether a denial of fair hearing has been occasioned by the refusal of the trial court to enable the appellant to replace an absconding witness (DW1) at judgment stage? I must say that, the law is that, the duty of a trial judge hearing a civil case is limited to that of an impartial umpire who ensures that the norms of law and procedure are complied with. In the case of Chief Kalu Igwe & Ors Vs. Chief Onwuka Kalu 5 NWLR (Pt.149) 155, the Supreme Court observed as follows:

"The Judge's role in adjudication is that of umpire. A trial judge should not abandon this role and plunge into the arena of contest and take side with any of the parties to the case before him."

From the records of this appeal, it can be seen that hearing in this 1958 Consolidated suit commenced on 11/10/2001. At the conclusion of the case for the respondents, the appellant Bank on 31/7/2002 began giving evidence. After two appearances and giving evidence, the appellant Bank's witness (DW1) abandoned court and refused to make himself available for cross-examination. The court had to adjourn the matter for over 10 times for the appellant Bank's witness (DW1) to come and conclude his evidence in-chief and be cross-examined, but the appellant Bank (witness) did not care to come to court again. Then the counsel to the appellant Bank on 10/7/2003 voluntarily closed their case and addressed the trial court. The counsel in her address even thanks the court for being so patient with her client - the appellant Bank. She also apologise for the behaviour of the said DW1. Thereafter, the case was adjourned for judgment on 24/9/2003.

On that date of 24/9/2003, suddenly, one Ike Akaraiwe Esq. (the present counsel in the appeal) appeared and informed the trial court that he had just been briefed to come into the matter, and had filed a motion to arrest the judgment. (See page 120 of the record). From what appears on the records, the appellant Bank's counsel (the original defence counsel) resisted, and protested the interjection, and that the trial Court readily patiently offered accommodation thereto for arguments on the application, and ruling was however delivered, refusing the application on the authority of Bob Manuel Vs. Briggs (supra).

It seems to me therefore that the course taken by the learned trial judge in offering accommodation for arguments on the application, and thereafter delivers ruling after which the judgment in the substantive suit was read is, in my view, an act which did not seriously undermine the appellant's right to fair hearing as provided by section 36(1) of the Constitution of Nigeria 1999. In the context of the said section 36(1), Edozie, JCA (as he then was), said:

"Fair hearing encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice to wit: audi alteram partem and nemo judex in causa-sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so."

See Iwvoha Vs. Okoroike (1996) 2NWLR (Pt.429) 231 at 250 par. F.

And in the case of Federal Civil Service Commission & 2 Ors. Vs. J.O. Laoye (1989) 2NWLR (Pt.106) 652 at 725, the Supreme Court spelt out the following basic attributes of fair hearing:

a) That the court shall hear both sides not only in the case but also on all material issues in the case before reading a decision which may be prejudicial to any party in the case. See Shellon Vs. Broom filed Justices (1964) Q.B 573 at p.578.

b) That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned. See Adigun Vs. A.G. Oyo State & Ors. (1987) 1 NWLR (Pt.53) 678.

c) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing, and

d) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been dare. See R. Vs. SUSSEX Justices Ex-perte MC Carthy (1924) 1K.B. 256 at 259 and Deduwa & Ors. Vs. Okorodudu (1976) W.S.C. 328.

With the principles of law stated above and armed with same, there is, to say the least, no high handedness on the part of the learned trial judge. The Constitutional principle of fair hearing to be noted is for both parties in the litigation. It is not only for one of the parties. The court must not invoke the principle in favour of the parties to the disadvantage of the other party undeservedly. That will not be justice but injustice. On the consideration of the application to enable the appellant to call another witness to replace an absconding witness (DW1) at judgment stage, the records is emphatic on the fact that the appellant's counsel (the original defence counsel) had since closed their case and addressed the court. I must agree with the respondents' contention that the application was not asking for the appellant (as defendant) to allow DW1, who had been taking the Court on a ride, to complete his evidence but rather for another witness to be brought in, to replace DW1 without stating the so called vital nature of his testimony, yet the trial court, in accord with the requirements of justice, accommodated the arguments on the application. Also at the time the appellant's counsel argued their application, he ought to know that the case was adjourned for judgment, and that the case should not be re-opened where no special circumstances do exist to justify the grant of further adjournment.

The principles governing consideration for application for adjournment, to suspend the delivery of judgment etc., has been settled. It is the law that, whether or not an adjournment would be granted, is a matter totally within the discretion of the judge. See A.C.B. Ltd Vs. Agbonyim (1960) SCNLR 57; and Unilag. Vs. Aigoro (1985) 1 NWLR (Pt.1) 143. The judge is also enjoined to consider the interest of not only the parties but also the court in deciding whether or not to grant such an application. SeeN.P.A. Vs. C.G.F.C. (1974) 12 S.C. 81. Therefore, the case which was repeatedly frustrated by the other party as in this case which suffered 10 adjournments at the instance of the defence, there will be no useful purpose by adjourning it. Where no useful purpose would be served by adjourning a suit, a trial court exercises its discretion rightly when it refuses an adjournment. See Onifode Vs. Olayiwola (1990) 7 NWLR (Pt.161) 130. I am therefore of the considered view that on the question of refusal by the learned trial judge, of the appellants application to bring another witness at the judgment stage and after hearing repeatedly frustrated the suit for some years, was right and a case of want of fair hearing had not been made out. The breach of the constitutional right of fair hearing has not also been made out. The posture and procedure adopted by the learned trial judge in the instant case did not occasion miscarriage of justice to the appellant.

It is important to note that, a party complaining that he has been denied the right of fair hearing under section 36(1) of the said Constitution, ought to remember that in a civil case, a balance has to be struck between the plaintiffs right to have his case heard expeditiously and the defendant's right to put across his defence to the plaintiffs case. A party who has been afforded the opportunity to put across his defence and fails to take advantage of such opportunity, cannot later turn round to complain that he was denied a right of fair hearing.

In the instant case, and in the course of trial, the appellant (as defendant) was given all the opportunities to defend the action but failed to do so despite several adjournments at the instance of the appellant. Since the appellant failed to put across its defence the trial court cannot compel the appellant to do so because, surely it is not the place of the court to compel a defendant to come and put across his defence.

Again in the instant case, the appellant had, as shown in the record, deliberately set out to exhaust the patience of the trial judge. Several adjournments were granted to enable the appellant come and give its defence, and the appellant failed to utilize the opportunities.

Remembered, is a two-edged sword to the plaintiff to be heard timeously and for the defendant to avail itself the rights, to present its side of the case. The courts are mandated to hear the parties, both parties to the case, but, one important thing to note is that, the court is not a slave of time that must wait indefinitely for a party to decide when to come to present its case. For, to delay hearing of a case deliberately is an abuse of court process which in turn defeats justice.

In view of the principles of law stated above, the posture and procedure adopted by the learned trial judge in the instant case did not occasion a miscarriage of justice to the appellant. Therefore, the breach of the constitutional right of fair hearing, in my view, has not been made out. This issue therefore is resolved against the appellant and in favour of the respondents. This takes me to issue No.2 in the respondents' issues. 

ISSUE NO.2 OF THE RESPONDENTS

The complaints of the appellant Bank under this, is that, the trial court made up the case for special damages for the respondents while it is for respondents (as plaintiffs) to prove their case of special damages, by strictly proving every kobo of special damages claimed. The appellant after referring to the definition of "special damages", has submitted that special damages must be specifically pleaded and strictly proved. It was further submitted that the trial court's award of Six Million Six hundred and thirty three thousand Seven hundred and seventy-two Naira was wrong because Exhibit 'W upon which the trial court relied heavily by indicated a yearly loss of One million Nine hundred and sixty one thousand Five hundred Naira only, and puts as upper limit of loss, the sum of Three Million Three hundred and sixteen Thousand Eight hundred and Eighty-six Naira. That it was not for the Court to assume, that loss of each year would be the said sum of one Million, Nine hundred and sixty-one Thousand Five hundred Naira. It was for the respondents to adduce evidence for each of alleged loss claimed, which they did not. The appellant also submitted that Exhibit 'W' puts an upper limit of Three Million, Three hundred and Sixteen Thousand Eight hundred and sixty-six Naira, as loss, that even if any thing proven, it was Three Million Three hundred and Sixteen thousand Eight hundred and Eighty-six Naira and not Six Million, Six hundred and thirty-three thousand seven hundred and seventy-two Naira as claimed. That the arithmetical calculation undertaken by the trial court was an evidence from the bench not supported in any material particularly, by evidence from the witness box. The appellant argued that the respondent did neither particularized nor specified their alleged loss. That Exhibit "W" upon which the trial court relied, ought to be discountenanced in its entirety because it is the contradictory view of PW2. That Exhibit "W" makes out a case for a maximum loss of Three Million, Three hundred and Sixteen Thousand, Eight hundred and Eight-six Naira and not Six Million Six hundred and thirty-three thousand seven hundred and seventy-two Naira.

Furthermore, the appellant submitted that the evidence of PW2 on which the trial Court relied solely in awarding special damages against the appellant is of no evidential value because PW2 did the bidding of those who hired him, behind the back of the appellant and as such appellant was not given opportunity to present his accounting documents to PW2.

On Exhibits 'Z', 'Z1' - 'Z3', the appellant argued that they are letters written by the appellant to the respondents stating the respondents indebtedness to the appellant the Exhibits made reference to the prevailing interest rate regime with respect to the figures. The trial court, therefore, misdirected itself when it held that nothing was placed before it to show how the figures were arrived at. That from the wordings of the said Exhibits, it was clear how the figures contained thereat were arrived. The appellant finally urged this court to set aside the award made by the trial court as special damages and not to award the sum of Three Million, Three Hundred and Sixteen Thousand Eight Hundred and Eighty-six Naira because Exhibit "W" not been particularized in the pleadings.

In response, the respondents contended that the appellant's contention on this score are largely contradictory and in total conflicts. They argued that page 153 (page 21) of the records and paragraph 4.20 (page 12) of the appellant's brief rightly captured the reasoning process of the trial court in arriving at the award Six Million, Six hundred and Thirty-three Thousand Seven hundred and seventy-two Naira. That under paragraph 4.22 (p. 13) of the appellant's brief further conceded the existence of the evidence on which the computation of that award was made by the trial court. Page 90, L.33- end, page 91 L. 1-7 of the record was referred to us in support of their contention. They also argued that the reasoning of the trial court outlined in the judgment on this issue particularly at p. 150 L. 21 to end, p. 151 L.30 - p. 152, L.1, pp. 152-153 - end are totally unassailable, cogent and justified.

On the complaints pertaining to the evidential value of Exhibits 'Z', 'Z1' - 'Z3' tendered by DW1, the respondents argued that no evidence whatsoever was proferred by the defence to meet the plaintiff's case on any aspect. The documents which were mere correspondences, therefore, did not qualify as Exhibits and the trial court was in fact entitled to disregard all of them in the consideration of the case. The respondents further argued that the decision of the trial court was justified. They urged this court to dismiss the appeal and affirm the decision of the trial court.

I have carefully examined the second issue raised for determination in this appeal as contained in the briefs of the parties and it is whether the evidence led, met the required standard to sustain claim for special damages. The trial court in allowing the claims of the respondents substantially had in its final judgment reasoned:

"The plaintiffs at paragraph (sic) 9 of the statement of claim of 26/9/96 specifically claimed special damages in proof of which Exhibit "W" was tendered and admitted in Evidence. At page 12 of Exhibit "W" is the details of the losses suffered by the plaintiffs as a result of the act of breach of the defendant. For the loss suffered by the 1st plaintiff as earnings from accommodation only for 1 years is N1,961, 500.00. This report - Exhibit "W" was dated 29th Nov. 1993. It is nearly 10 (ten) years since Exhibit "W", was made. By simple arithmetical calculation, the loss suffered by the 1st plaintiff for 10 years would be the figure for one years times 10, which would have given a much higher figure than N1,961,500.00. The losses suffered by the 2nd plaintiff as a result of the termination of the numerous contracts it was then executing as per page 12 of Exhibit "W" is N1,355,3 86.00. 

The plaintiffs claim for N6,633,772.00 as special damages for the breach of contract.

If the loss incurred by the 1st plaintiff, for one year for one year is multiplied by 10 years, the figure would have been in the region of N10 Million and above. This court, not being a father Christmas cannot award the plaintiffs something higher than they asked for a special damages ever though that amount in 1988 cannot be the same amount about 15 years after, in view of the high monetary inflation in Nigeria over the years.

It is my considered view that the plaintiffs have proved their case against the defendant on the balance of probabilities and they are entitled to judgment as per paragraph 10 and 19(sic) of their statement of claim in the consolidated suit."

On the claim for special damages, the learned trial judge awarded N6,633,722.00 to the plaintiffs/respondents.

I think I must at this stage examine the general principles of law governing the award of "special damages" before a consideration of the evidence presented by the respondents in proof of their claim for "special damages". It is elementary that "Special damages" are such that the law will not presume to flow or infer from the nature of the act or breach complained of by the plaintiff as a matter of course. They are exceptional in their character and connote 'specific items of loss which the plaintiff alleges are the result of the defendant's act or breach of duty complained of.  Unlike general damages, special damages must be claimed specifically and strictly proved and the court is not entitled to make its own estimate of the same. See Abdul Jaber Vs. Mohammed Basma (1952) 14 W.A.C.A. 140.

In the instant case the respondents were claiming special and general damages and by rules of pleadings, they (the respondents) must plead special damages and give particulars thereof before they will be allowed to lead evidence in proof thereof. See B.E.O.O. industries (Nig) Ltd. V. Maduakoh & Anor. (1975) 12 S.C (reprint) 68. In MCGREGOR ON DAMAGES, 16th Ed., paragraph 2025 it will be helpful and germane to the consideration of this appeal and they are as follows:

"Para. 2025:

General damage consists in all items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items of loss which must be specified by him before they may be proved and recovery granted." (underline mine for emphasis).

"Special damage" said Bowen L.J. in Rat Cliffe Vs. Evans (1892) 2 Q.B. 524 C.A. at 528: "means, the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiffs claim to be compensated, for which he sought to give warning in his pleadings in order that there may be no surprise at the trial."

Having stated what general damage and special damage connote in law, I shall now examine the pleadings of the parties and the evidence led in proof of the averments therein contained to see whether the award made by the trial judge is justified in law. The relevant paragraphs of the statement of claim are 9 and 10, and are hereunder reproduced:

"Para. 9 Despite the extreme desperation occasioned the plaintiffs by this unjustifiable refusal to effect further advances in discharge of the defendant's obligations on the agreement and the plaintiffs protestations by various correspondences to the defendant, the notices of which are hereby given to the defendant to produce the original, the defendant continued unyielding in its position, with the result that between 1981 - 1982 nearly all the aforesaid ongoing contracts for which the loan was specifically sought and granted by the defendant bank could no longer be carried through due to lack of funding and were eventually all cancelled by the aforesaid employers. The plaintiffs will found on the letters determining the said contracts, including the relevant Consultants letters of 1/11/82, 5/1/81, 10/12/82, 18/9/80, 8/6/82 amongst others, together with the experts report on the pecuniary losses thereby inflicted on the plaintiffs issued by Uche Chigbo & Co, Chartered Accountants dated 29/11/93, amounting to the sum of N6,633,722.00.

Para. 10 The defendant has thereby occasioned the plaintiffs Enormous damages and other inestimable losses and Refused to surrender the plaintiff's title deeds deposited with the defendant.

WHEREOF the plaintiffs claim from the defendant as follows:-

(i)...x

(ii) ...x

(iii) N6,633,722.00 special damages for the breach of contract thus occasioned as per paragraph 9 hereof.

(iv) ...x

(v) ...x

The main submission of the appellant was that the respondents failed to lead credible evidence in support of the special damages claimed which could warrant granting it. It is settled law that, special damages are required to be proved strictly.

What is the evidence led? PW1 and PW2 gave evidence in proof of the claim. PW1 who was an Engineer and Director of the plaintiffs/respondents said inter-alia, in his evidence in-chief:

"I wish to state that these acts of the defendants, has occasioned enormous damage and losses to the plaintiffs. The acts of the defendant nearly ruined the 1st plaintiff and completely ruined the 2nd plaintiff as it lost nearly all its contracts it was executing them and is now out of operation. The holding of the securities since 1980 which were worth Millions of Naira made it impossible for us to use those securities for our business. So we cannot now get any loan from any bank since we cannot use our securities since then. We are therefore seeking the relief (the claims) from this court"

On page 94 of the record, PW1 continued as follows:

"In the failure of the defendant to release the balance to the plaintiffs, the securities to the plaintiffs despite numerous demands. The wrong debiting I complained about had devastating effect on the company. Firstly, it made our Account to be in red. Secondly, due to many interests and wrong calculations and multiple debiting, it was difficult for us to operate our daily cash flow transaction. It stocked the expansion programe of the hotel and incurred us very heavy financial losses and loss of business.

It made us to borrow N30,000.00 from Co-operative Bank Ltd to bring back the establishment to terrible effect is that we had already chose our Account with the U.B.A on anticipation of the defendants promise to support our business. They have also with held our security documents since 1980 with the result that we cannot borrow. It has thus paralyzed our business. Finally, the impression due to the defendant is that we are owing heavily to the defendant when we are not owing them anything. And this had affected our business and good will."

PW2 who was a chartered Accountant gave evidence and stated inter-alia:

"The plaintiffs approached my firm with a request to go into the transaction between the plaintiffs and defendants. Following the instruction, we were provided with all the relevant books Bank statements and other documents including correspondence between the parties. We went through the documents and compile our observations based on our expertise. We looked into the transactions and correspondences and noticed that there were some defaults on the part of the bank/defendant which in our opinion caused some losses both financial and otherwise on the plaintiffs. By our findings, the losses amounted to N3,316,886.00 as at 1993. The basis of our finding was reduced into a report and submitted to our clients - the plaintiffs."

When he identified the Reports he was referring to, it was admitted in evidence without objection from the appellant and marked as Exh. "W".

The above are the salient pieces of evidence led by the respondents upon which they have predicated their claim for the special damages as set out above. The totality of the evidence led by PW1 and PW2 does not, in my view, meet the standard of proof required in this case, since the respondents failed to specifically plead and particularize their special damages for loss of business earning during the period of alleged breach of contract. Non of them gave evidence of any specific item constituting the basis for the special damages. Also non of them gave evidence which advances the respondents' case in the direction of award of special damages. Exhibit 'W' which the trial court relied on in its conclusion to award special damages is an evidence on an alleged loss not pleaded, and such evidence goes to no issue. I agree with the appellant's counsel that it indicates a yearly loss of one Million, Nine hundred and Sixty-one thousand, Five hundred Naira (N1,961,500) and the trial court did the arithmetical calculation to arrive at its decision. This is wrong. I wish to say that an appellate court can interfere with the findings of fact where there is a substantial error, apparent on the face of the record of proceedings and where not to do so will occasion a substantial miscarriage of justice. See Chinwendu Vs. Mbamali (1980) 3-4 S.C. 31. There is error of law or even of facts in assuming, by the trial court that the respondents lost business earning and, then awarded the special damages. This is not justified. Again, let me say that special damages are in a class of their own requiring strict proof which can only be proved/established by credible and ascertainable facts which must have been specifically pleaded and of course strictly proved. This is not the case here. This issue no.2 on the respondents' brief is answered in the negative. For the avoidance of doubt it is resolved in favour of the appellant.

In the final analysis, it is my judgment that the appeal is partially allowed. The judgment of the trial court awarding special damages to the respondents to the tune of Six Million, Six Hundred and thirty-three Thousand, Seven Hundred and Twenty-two Naira (N6,633,722.00) is hereby set aside and the claim for the special damages consequently dismissed.

I make no order as to costs.

JUMMAI H. SANKEY, J.C.A.: I agree.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother, MOHAMMED L. TSAMIYA, JCA I am in complete agreement with His Lordship's reasoning and conclusions. I have nothing to add. I also abide by all orders made by my learned brother in the Judgment including the order as to costs.

     Appearances