(2016) LPELR-41236(CA)

Transcription

1 DIBAL v. EGUMA CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna UWANI MUSA ABBA AJI IBRAHIM SHATA BDLIYA ON TUESDAY, 26TH APRIL, 2016 Suit No: CA/K/537/2014 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU Between DANIEL DIBAL - Appellant(s) And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal KINGSLEY EGUMA - Respondent(s) RATIO DECIDENDI 1. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed "It should always be borne in mind that a Court of law is not a charitable institution and its duty in civil cases is to render unto everyone according to his proven claim. It cannot grant reliefs not asked for by a party, and where the relief is asked for, it cannot grant a claim not proved or supported by evidence - Green v. Green (1987) 3 NWLR (Pt. 61) 480, Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658, Abenga v. Benue State Judicial Service Commission (2006) 14 NWLR (Pt. 1000) 621. There is thus nothing this Court can do or could have done, on its own, to assist the case of the Appellant."Per ABIRU, J.C.A. (P. 19, Paras. B-E) - read in context

2 2. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed "There is, thus, a world of difference between the facts asserted in the body of the pleadings and the relief sought in a matter. It is trite law that a Court is bound by the reliefs sought, and no matter how inelegantly drafted, it cannot give more or differently from that claimed by the parties. A Court cannot grant a relief outside that sought by a party, except in limited instances as a consequential order. A Court cannot recast, re-arrange or reconstruct the reliefs sought with a view to granting a relief at all cost - Ekpeyong v. Nyong (1975) 2 SC 71, Ezeonwu v. Onyechi (1996) 9 NWLR (Pt. 438) 499, Edebiri v. Edebiri (1997) 4 NWLR (Pt. 498) 165, Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544, Awoniyi v. The Registered Trustees of the Rosicrucian Order of AMORC (Nigeria) (2000) 10 NWLR (Pt. 676) 522. In its adjudicatory role and in our adversarial system of justice, Courts have one main role and that is to decide the cases formulated, presented and established by the parties themselves and Courts have no business going outside the claims or reliefs of the parties in granting reliefs to them - Adetoun Oladeji (Nig.) Ltd v. Nigeria Breweries Plc (2007) 5 NWLR (Pt. 1027) 415, Veepee Industry Ltd v. Cocoa Industries Ltd (2008) All FWLR (Pt. 425) 1667, The duty of the lower Court in the instant case therefore, was to take the assertions of facts contained in paragraph 6 of the statement of claim and in paragraph 6 of the deposition of oath of the Appellant, along with the other facts in the matter, into consideration in reaching a decision whether or not to grant the two reliefs sought by the Appellant. It was not the duty of the lower Court to grant the assertion of facts as the reliefs sought."per ABIRU, J.C.A. (Pp , Paras. C-E) - read in context

3 3. ACTION - CLAIM(S)/RELIEF(S): Importance of relief to a case "...This is a mere assertion of fact and not a relief sought in the matter. The reliefs sought in a matter are the prayers asked for by a litigant at the conclusion of the averments of facts. They are the requests that a party demands of the Court on the bases of the averments of facts contained in the body of the pleadings. Where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and the claimant's case proved, no remedy will enure to the benefit of the claimant, leaving his position unchanged. What goes to trial is the entitlement to the reliefs claimed based on the pleadings. The facts pleaded highlight the cause of action which determines the relief claimed for. The relief demands that the cause of action be remedied. If the relief is not claimed for, the case is aborted. In Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, Niki Tobi, JCA (as he then was) put this point in perspective when he stated at page 784 that "Relief is the live wire of an action. Relief puts in specific demanding language, the cause of action. Where there is no relief sought in an action, there is nothing for the Court to grant. It is really the bedrock of an entire action. The action can either stand or fall by the relief sought." Per ABIRU, J.C.A. (Pp , Paras. B-C) - read in context

4 4. DAMAGES - SPECIAL DAMAGES: Duty on a claimant who claims special damages to prove it and method of such proof "The claim of the Appellant for the sum of N1.8 Million being the value of his car taken by the Respondent was a claim in the nature of special damages. This point was made by the Supreme Court in Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668 where Iguh, JSC, stated that where the precise amount of a particular item of claim is known or has become manifest before trial, either because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved. It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved - Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1417) 121, Union Bank of Nigeria Plc v. Chimaeze (2014) NWLR (Pt. 1411) 166, British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253.On what amounts to strict proof, the law is that the party claiming special damages must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it - Agi v. Access Bank Plc supra, Union Bank of Nigeria Plc v. Chimaeze supra. In Neka BBB Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) 2 NWLR (Pt. 858) 521, at , the Supreme Court explained this statement thus: "It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable the loss or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciated the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions." What will pass as concrete and credible evidence depends on the facts of each case. Where the case of the claimant is not contested on the pleadings, then minimal evidence will amount to credible and concrete evidence. Where, however, the other party contests the case of the claimant, the claimant must, to succeed, lead credible evidence that preponderates over that of the other party on the facts in controversy."per ABIRU, J.C.A. (Pp , Paras. E-E) - read in context

5 5. DAMAGES - ASSESSMENT OF DAMAGES: Guiding principles for assesment of damages "The Appellant was the sole plaintiff witness. Reading through the entire testimony of the Appellant, he led no iota of evidence, oral or documentary, in proof of the assertion that the value or cost of the car in question was N1.8 Million. There was thus no basis upon which the lower Court could have hinged the grant of the claim. The law is that assessment of damages must be based on the pleadings and evidence adduced and where there is no evidence to support a claim for damages the claim should be dismissed - IMNL v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543, Oke v. Kaja (2014) 3 NWLR (Pt. 1394) 374, First Bank of Nigeria Plc v. Banjo (2015) 5 NWLR (Pt. 1452) 253, Chevron (Nig) Ltd v. Omoregha (2015) 16 NWLR (Pt. 1485) 336."Per ABIRU, J.C.A. (Pp , Paras. F-D) - read in context 6. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether he who asserts must prove "It is now elementary in our civil jurisprudence that he who asserts has the primary duty of proving his assertion. In the instant appeal, the onus is on the Appellant to prove his entitlements to the reliefs sought in order to succeed. The claim for the sum of N1.8 million being the value of his car taken away by the Respondent was a claim in the nature of special damages which must be specifically pleaded with particulars and strictly proved. This the Appellant has failed to do before the lower Court. See Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121; and Union Bank of Nigeria Plc v. Chimaeze (2014) 9 NWLR (Pt. 1411) 166."Per ABBA AJI, J.C.A. (P. 20, Paras. B-E) - read in context

6 7. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether he who asserts must prove "It is elementary that in civil proceedings, the natural course of events is that the claimant should bring his own cause of complaint before the Court in every case where he has anything to prove, either as to the facts necessary for his obtaining a verdict or as to amount of damage to which he conceives the proof of those facts will entitle him. It appears expedient that the claimant should begin in order that the Judge and the defendant himself should know precisely how the claim is shaped. This disclosure may convince the defendant that the defence which he has pleaded cannot be established - Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448. Therefore, the general onus is on the claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal - Woluchem v. Gudi (1981) 5 SC 291, Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372, NITEL Plc v. Rockonoh Property Co. Ltd (1995) 2 NNILR (Pt. 378) 473, Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412, Agboola v. United Bank for Africa Plc (2011) 11 NWLR (Pt. 1258) 375. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant - Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade v. Osunkeye (2007) 15 NWLR (Pt. 1057) 218, Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. This is explained by the maxim "ei qui affirmat non ei qui negat incumbit probation" which means the burden of proof lies on one who alleges, and not on him who denies - Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, Olaleye v. Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1. The onus in the instant case was thus on the Appellant to prove his entitlement to the reliefs sought in order to succeed."per ABIRU, J.C.A. (Pp , Paras. F-D) - read in context

7 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):The Appellant commenced the action in the lower Court against the Respondent and his claims were for (i) the sum of N1.8 Million being the value of his car taken by the Respondent; and (ii) the sum of N180, as general damages and the cost of prosecuting the action. The case of the Appellant on the pleadings was that the Respondent is a car dealer and that sometime in the year 2009 both of them held discussions on the possibility of the Respondent assisting him to sell two Honda cars and that pursuant to the discussion he gave one of the Honda cars, a Honda Accord 2003 Model with a V6 Engine valued at N1.8 Million to the Respondent for sale. It was his case that the Respondent collected the car in August of 2009 and did not return either with the money or car and that when he made several demands for the return of his car or for the payment of the money, the Respondent informed him that armed robbers snatched the car from him on his way to Abuja. It was his case that on the 9th of August, 2009, the Respondent pleaded for patience and gave him a written 1

8 undertaking to pay the monetary value of the car, but he has waited in vain for the redemption of the undertaking. It was his case that he had intended to plough the money received from the sale of the vehicle back into business and that he has been unjustly treated by the Respondent. The case of the Respondent in his defence was that the Honda Accord car was not valued at N1.8 Million and that he never told the Appellant that he could sell same for N1.8 Million and neither did he undertake to pay the Appellant the sum of N1.8 Million as the monetary value of the car. The Respondent admitted agreeing to assist the Appellant to sell the Honda car and it was his case that he got a buyer in Gwarimpa, Abuja and that he informed the Appellant that he was taking the car to Abuja and that the Appellant gave him the go ahead to do so. It was his case that he was attacked by armed robbers in Gwarimpa Abuja and the car was snatched from him and that he reported the incident to the Police in Abuja and that the armed robbers were subsequently arrested by the Police. It was his case that the Police called him for identification of the robbers and he identified the 2

9 robber who pointed the gun at his head and that he took an uncle of the Appellant with him to the Police Station to confirm all these incidents. It was his case that the Appellant reported him at the Metropolitan Police Command in Panteka, Kaduna and that the policemen at this Police Station forced him into writing an undertaking to pay for the car but that he never undertook to pay any sum of money to the Appellant for the car as the police were still investigating the matter. It was his case that the Appellant also reported the matter to his employers who advised him to seek ways of settling same and that he shall contend that he acted as agent for the Appellant when he took the car to Abuja for sale. The matter was heard on the merits and the Appellant testified as the sole witness in proof of his case and he tendered exhibits and the Respondent also testified as the sole witness in proof of his defence and he also tendered exhibits. At the conclusion of trial and after the final addresses of the Counsel to the parties, the lower Court entered judgment dismissing the claims of the Appellant. The lower Court, after traversing through the respective 3

10 cases of the parties and the exhibits tendered, stated in the judgment thus: "... Having said that, since the Plaintiff by the instant action is claiming among others, the value/cost of the car assessed as N1.8M, has he established same. By our laws as earlier stated he who asserts must prove. By the pleadings filed by both parties, issue in respect of the cost of the car had been joined by the parties.... Therefore, the onus is on the Plaintiff to prove the value or cost of the car in dispute. Looking at the evidence led by the Plaintiff, he has neither tendered any receipt evidencing the cost of purchase of the car nor has he led any evidence as to how he came about the value/cost of the car and whether a price for which the car is to be sold was fixed by him and communicated to the Defendant. I have also taken a look at Exhibit P1 same does not contain how much the Defendant will pay to the Plaintiff as cost/value of the car. While I agree that the Plaintiff is entitled to either have his car back from the Defendant or the proceeds of the sale of it, the Plaintiff has however failed to establish what the cost of the car or its value is. This is 4

11 so, as the amount stated by the Plaintiff as the cost or value of the car has not been proved. In the absence therefore of any evidence as to the cost of the car or its monetary value, I hold that the Plaintiff has failed to discharge the burden of proof placed on him by the law with regards to the cost of the car or its value and therefore not entitled to the amount claimed and so his claims must fail." (see pages 81 to 82 of the records) The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing two grounds of appeal and dated the 13th of May, 2014 against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 24th of December 2014 and Counsel to the Respondent responded thereto by a brief of arguments dated the 18th of March, At the hearing of the appeal, Counsel to the Appellant was present in Court while the Counsel to the Respondent was absent. Counsel to the Appellant adopted and relied on the arguments contained in his brief of arguments and he urged this Court to deem the brief of arguments of the Respondent as having been 5

12 argued pursuant to the provisions of Order 18 Rule 9(4) of the Rules of this Court. Counsel to the Appellant formulated two issues for determination in the appeal. These were: i. Whether the trial Court was right in dismissing the Appellant's claim without adverting its mind to the statement of claim. ii. Whether in the circumstances of the case and having regard to the evidence led the judgment of the learned trial Judge was not unreasonable and unwarranted. In arguing the two issues for determination, Counsel stated that the lower Court based its judgment on the indorsement on the writ of summons without considering the averment in paragraph 6 of the statement of claim and paragraph 6 of the written deposition of the witness and that it was trite law that a statement of claim supersedes the writ of summons and that a relief endorsed in the statement of claim which is not on the writ of summons subsists and he referred to several cases including Eze v. George (1993) 2 NWLR (Pt. 26) 86 and Elf Nigeria Ltd v. Opere Sillo (1994) 7-8 SCNJ 119. Counsel stated that the first relief sought by the Appellant as per paragraph 6 of the statement 6

13 of claim and paragraphs 6 and 11 of the written deposition was the payment of the sum of N1.8M being the value of the car in question or in the alternative a return of the car by the Respondent and that the lower Court did not take into consideration the alternative prayer in arriving at its decision and this has occasioned a miscarriage of justice. Counsel stated that assuming the parties did not indeed agree on N1.8M as the value for the car, the Respondent did not state what his price tag for the car was and he referred to the Latin maxim "ubi jus ibi remedium" - where there is a right there is a remedy and said that having found that the Appellant is entitled to either have his car back from the Respondent or the proceeds of the sale of it, the lower Court ought to have entered judgment for the Appellant accordingly. Counsel concluded his arguments by urging this Court to allow the appeal, set aside the judgment of the lower Court and to in its stead enter judgment in favour of the Appellant in the terms of the endorsement on the statement of claim or alternatively by making an order directing the Respondent to return to the Appellant the said Honda 7

14 Accord car. In his response, Counsel to the Respondent similarly formulated two issues for determination in this appeal. These were: i. Whether there was evidence before the lower Court as to the value of the car, the subject matter of the case at the lower Court, and on which the lower Court would have based its judgment. ii. Whether the Appellant is entitled to a relief not contained in the endorsement on the statement of claim and writ of summons. In arguing the issues for determination, Counsel stated that it was obvious from the pleadings of the parties that issues were joined on the sum of N1.8M being the value of the car in question and that the onus was thus on the Appellant to prove same by way of tendering receipts or some form of evidence to convince the lower Court on the N1.8M value he placed on the car. Counsel stated that the Appellant led no shred of evidence in proving the value of the car and there was thus no basis upon which the lower Court could have entered judgment for him in the terms of the reliefs sought in the statement of claim. Counsel conceded that the statement of claim supersedes the writ of summons, but 8

15 stated that request for an order that the Respondent returns the Honda Car to the Appellant was not part of the reliefs sought in the statement of claim by the Appellant from the lower Court and that the lower Court, not being a Father Christmas cannot grant a relief not sought in the endorsement on the statement of claim. Counsel urged this Court to dismiss the appeal and uphold and affirm the judgment of the lower Court. It must be stated from the onset that the reliefs sought by the Appellant on his writ of summons were exactly the same as those sought in the statement of claim, and these were for (i) the sum of N1.8 Million being the value of his car taken by the Respondent; and (ii) the sum of N180, as general damages and the cost of prosecuting the action. Thus, the principle of supersession of the writ of summons by the statement of claim generously referred to by Counsel to the Appellant has no application in this matter. The Appellant referred to the averment in paragraph 6 of the statement of claim and the assertion in paragraph 6 of the deposition on oath of the Appellant. Paragraph 6 of the statement of claim read thus: "The 9

16 Plaintiff avers that when he persisted in pressurizing the Defendant to either return his car or bring the money from the sale of same, the Defendant then told a lie that armed robbers snatched the car from him in Abuja." The same statement was repeated in paragraph 6 of the deposition on oath. This is a mere assertion of fact and not a relief sought in the matter. The reliefs sought in a matter are the prayers asked for by a litigant at the conclusion of the averments of facts. They are the requests that a party demands of the Court on the bases of the averments of facts contained in the body of the pleadings. Where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and the claimant's case proved, no remedy will enure to the benefit of the claimant, leaving his position unchanged. What goes to trial is the entitlement to the reliefs claimed based on the pleadings. The facts pleaded highlight the cause of action which determines the relief claimed for. The relief demands that the cause of action be remedied. If the relief is not claimed for, the 10

17 case is aborted. In Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, Niki Tobi, JCA (as he then was) put this point in perspective when he stated at page 784 that "Relief is the live wire of an action. Relief puts in specific demanding language, the cause of action. Where there is no relief sought in an action, there is nothing for the Court to grant. It is really the bedrock of an entire action. The action can either stand or fall by the relief sought." There is, thus, a world of difference between the facts asserted in the body of the pleadings and the relief sought in a matter. It is trite law that a Court is bound by the reliefs sought, and no matter how inelegantly drafted, it cannot give more or differently from that claimed by the parties. A Court cannot grant a relief outside that sought by a party, except in limited instances as a consequential order. A Court cannot recast, re-arrange or reconstruct the reliefs sought with a view to granting a relief at all cost - Ekpeyong v. Nyong (1975) 2 SC 71, Ezeonwu v. Onyechi (1996) 9 NWLR (Pt. 438) 499, Edebiri v. Edebiri (1997) 4 NWLR (Pt. 498) 165, Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544, 11

18 Awoniyi v. The Registered Trustees of the Rosicrucian Order of AMORC (Nigeria) (2000) 10 NWLR (Pt. 676) 522. In its adjudicatory role and in our adversarial system of justice, Courts have one main role and that is to decide the cases formulated, presented and established by the parties themselves and Courts have no business going outside the claims or reliefs of the parties in granting reliefs to them - Adetoun Oladeji (Nig.) Ltd v. Nigeria Breweries Plc (2007) 5 NWLR (Pt. 1027) 415, Veepee Industry Ltd v. Cocoa Industries Ltd (2008) All FWLR (Pt. 425) 1667, The duty of the lower Court in the instant case therefore, was to take the assertions of facts contained in paragraph 6 of the statement of claim and in paragraph 6 of the deposition of oath of the Appellant, along with the other facts in the matter, into consideration in reaching a decision whether or not to grant the two reliefs sought by the Appellant. It was not the duty of the lower Court to grant the assertion of facts as the reliefs sought. It is elementary that in civil proceedings, the natural course of events is that the claimant should bring his own cause of complaint before the Court in 12

19 every case where he has anything to prove, either as to the facts necessary for his obtaining a verdict or as to amount of damage to which he conceives the proof of those facts will entitle him. It appears expedient that the claimant should begin in order that the Judge and the defendant himself should know precisely how the claim is shaped. This disclosure may convince the defendant that the defence which he has pleaded cannot be established - Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448. Therefore, the general onus is on the claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal - Woluchem v. Gudi (1981) 5 SC 291, Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372, NITEL Plc v. Rockonoh Property Co. Ltd (1995) 2 NNILR (Pt. 378) 473, Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412, Agboola v. United Bank for Africa Plc (2011) 11 NWLR (Pt. 1258) 375. In other words, in a civil suit, the person who asserts has the primary burden of 13

20 proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant - Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade v. Osunkeye (2007) 15 NWLR (Pt. 1057) 218, Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. This is explained by the maxim "ei qui affirmat non ei qui negat incumbit probation" which means the burden of proof lies on one who alleges, and not on him who denies - Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, Olaleye v. Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1. The onus in the instant case was thus on the Appellant to prove his entitlement to the reliefs sought in order to succeed. The claim of the Appellant for the sum of N1.8 Million being the value of his car taken by the Respondent was a claim in the nature of special damages. This point was made by the Supreme Court in Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668 where Iguh, JSC, stated that where the precise amount of a particular item of claim is known or has become manifest before trial, 14

21 either because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved. It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved - Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1417) 121, Union Bank of Nigeria Plc v. Chimaeze (2014) NWLR (Pt. 1411) 166, British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253. On what amounts to strict proof, the law is that the party claiming special damages must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it - Agi v. Access Bank Plc supra, Union Bank of Nigeria Plc v. Chimaeze supra. In Neka BBB Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) 2 NWLR (Pt. 858) 521, at , the Supreme Court explained this statement thus: "It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the Court concrete evidence 15

22 demonstrating in no uncertain terms easily cognizable the loss or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciated the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions." What will pass as concrete and credible evidence depends on the facts of each case. Where the case of the claimant is not contested on the pleadings, then minimal evidence will amount to credible and concrete evidence. Where, however, the other party contests the case of the claimant, the claimant must, to succeed, lead credible evidence that preponderates over that of the other party on the facts in controversy. It is obvious from the pleadings of the parties in the instant case that issues were joined on whether or not the sum of N1.8 Million was the true value or cost of the Honda Car in question. The onus was thus on the Appellant to lead credible evidence in proof of the assertion. The Appellant was 16

23 the sole plaintiff witness. Reading through the entire testimony of the Appellant, he led no iota of evidence, oral or documentary, in proof of the assertion that the value or cost of the car in question was N1.8 Million. There was thus no basis upon which the lower Court could have hinged the grant of the claim. The law is that assessment of damages must be based on the pleadings and evidence adduced and where there is no evidence to support a claim for damages the claim should be dismissed - IMNL v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543, Oke v. Kaja (2014) 3 NWLR (Pt. 1394) 374, First Bank of Nigeria Plc v. Banjo (2015) 5 NWLR (Pt. 1452) 253, Chevron (Nig) Ltd v. Omoregha (2015) 16 NWLR (Pt. 1485) 336. The claim of the Appellant for the sum of N1.8 Million against the Respondent as the value of the car must thus fail. The Appellant made no alternate relief for a return of the said car and the lower Court could not have, and this Court cannot, grant such relief. This Court cannot thus fault the decision of the lower Court refusing the claims of the Appellant. But perhaps what the lower Court should have done, after having found on the facts of the case that 17

24 the Appellant was entitled to either have his car back from the Respondent or the proceeds of the sale of it, was to have non-suited the claims of the Appellant instead of dismissing them. The Appellant did not contest this appeal on the ground that his claims should have been non-suited and not dismissed and this Court cannot make any order in that direction. This case is rather unfortunate. From the deliberations of the lower Court in the judgment, it is a case in which the Appellant was entitled to some remedy, but the Appellant went home empty handed in the lower Court because his Counsel failed to do the rudimentary thing that a person claiming for damages must do in order to get some reprieve, and this is to lead some form of evidence on the claim. Rather than learn from this error and approach this appeal with better discernment, the Appellant's Counsel again displayed lack of understanding of the best approach of getting some form of succour for the case of the Appellant. Instead of seeking for the replacement of the order of dismissal made by the lower Court with an order of non-suit, and which will give the Appellant another opportunity of approaching 18

25 the lower Court to lead evidence in support of his remedy, Counsel chose to pursue the path of convincing this Court that facts pleaded in the body of pleadings and led in evidence equated to reliefs sought by a party. A path that the Courts have severally said was not tenable. It should always be borne in mind that a Court of law is not a charitable institution and its duty in civil cases is to render unto everyone according to his proven claim. It cannot grant reliefs not asked for by a party, and where the relief is asked for, it cannot grant a claim not proved or supported by evidence - Green v. Green (1987) 3 NWLR (Pt. 61) 480, Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658, Abenga v. Benue State Judicial Service Commission (2006) 14 NWLR (Pt. 1000) 621. There is thus nothing this Court can do or could have done, on its own, to assist the case of the Appellant. In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the High Court of Kaduna State in Suit No. KDH/KAD/1260/2010 delivered on the 28th of March, 2014 by Honorable Justice B. Mohammed is hereby affirmed. The parties shall bear their respective costs in 19

26 this appeal. These shall be the orders of the Court. UWANI MUSA ABBA AJI, J.C.A.:I had a preview of the lead judgment of my learned brother, Habeeb A. O. Abiru, JCA, just delivered and I agree with his reasoning and conclusions that the appeal is devoid of any merit. It is now elementary in our civil jurisprudence that he who asserts has the primary duty of proving his assertion. In the instant appeal, the onus is on the Appellant to prove his entitlements to the reliefs sought in order to succeed. The claim for the sum of N1.8 million being the value of his car taken away by the Respondent was a claim in the nature of special damages which must be specifically pleaded with particulars and strictly proved. This the Appellant has failed to do before the lower Court. See Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121; and Union Bank of Nigeria Plc v. Chimaeze (2014) 9 NWLR (Pt. 1411) 166. It is for this and the more detailed reasons in the lead judgment of my learned brother, that I too find no merit in the appeal and it is hereby dismissed. The judgment of the lower Court delivered on the 28th day of March, 20

27 2014 is hereby affirmed. I endorse the consequential order as to costs. IBRAHIM SHATA BDLIYA, J.C.A.:I have had the privilege of a preview of the judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, J.C.A., just delivered. I agree totally with the reasoning and conclusion that the appeal lacks merit and it is hereby dismissed. The judgment of the lower Court delivered on the 28th of March, 2014 by Mohammed J, is hereby affirmed. I abide by the orders made in the lead judgment. 21