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SPECIAL DAMAGES WILL BE UPHELD UPON EVIDENCE ADDUCED AND NOT CHALLENGED

Dictum

On special damages, it has been held that where the plaintiff plead the special damages and gives necessary particulars and adduce some evidence of it without the defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable tribunal can accept, it ought to be accepted. The reason is that where 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.

– ARIWOOLA J.S.C. Union Bank v. Chimaeze (2014)

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SPECIAL DAMAGES CANNOT BE AWARDED ON ANTICIPATED LOSS

In Young vs Chevron (Nig) Ltd 2013 LPELR 22126, the plaintiff set out the particulars of the crops that were destroyed in his farm and the expected earnings from those crops which he pleaded and gave evidence that the employees, agents, contractors and servants of the defendant had destroyed by setting fire to his farm. The learned trial Judge found that the plaintiff had not proved the items of special damages, as the pleadings and depositions merely contain speculations as to the number of plants and the expected income. On appeal, the Court of Appeal held: – “A Court is not expected to believe and act on evidence that is manifestly incredible or unreliable, merely because the plaintiff said so; the evidence itself must be credible evidence, before it can be acted on by a Court of law. What if the Appellant had claimed that the farm produce he lost was worth a Billion Naira, with nothing whatsoever to substantiate his claim, will a reasonable man expect the lower Court to hand it to him just like that? No, he would have to show some proof that he is entitled to such an amount, and that is what was required of him some evidence to back up his claims.”

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THE COURTS LEAN AGAINST CALLING FRESH EVIDENCE ON APPEAL

Before concluding on the said prayer 7 it is helpful to call to mind the observations of Oputa JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61 ) 364, 372 in an application to call additional evidence on appeal: “To talk therefore of assessing the rightness or wrongness of the trial court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is the reason why appellate courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases (and the principle should also be the same in civil cases), the courts lean against hearing fresh evidence on appeal.”

— Oguntade, JSC. UBA v BTL (SC. 301/2003, 15 April 2005)

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AN UNDATED DOCUMENT HAS NO EVIDENTIAL VALUE

Exhibit C3 is a letter to the Honorable Minister for Sports by Joe McCormack, Business Development Manager – Lagos of the defendant requesting an appointment with the Honourable Minister for 26th February 2013. It is not dated. An undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Accordingly, Exhibit C3 has no evidential value and so would be discountenanced for purposes of this judgment.

— B.B. Kanyip, J. Awogu v TFG Real Estate (2018) – NICN/LA/262/2013

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APPEAL COURT CAN EVALUATE DOCUMENTARY EVIDENCE

Very much aware of the findings of facts by the two lower courts in this matter, I must state, all the same, that where the evidence to be evaluated is mainly documentary as here, this court is as in good a vintage position as the trial court. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

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WRONG EVALUATION OF EVIDENCE BY TRIAL COURT

Where the Court of Appeal wrongly evaluates the evidence before the trial court and arrives at a wrong conclusion not borne out from the evidence before the court, the Supreme Court will intervene on the ground that the finding is perverse. But where the finding of the Court of Appeal is borne out from the evidence adduced in the trial court, this court cannot intervene. I do not see any reason for intervention in this appeal.

– Niki Tobi JSC. Iragunima v. Rivers State (2003)

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AVERMENTS IN PLEADINGS VERSUS AVERMENTS IN AFFIDAVIT; ADDRESS OF COUNSEL NOT EVIDENCE

Averments of facts in pleadings must however be distinguished from facts deposed to in an affidavit in support of an application before a court. Whereas the former, unless admitted, constitute no evidence, the latter are by law evidence upon which a court of law may in appropriate cases act. The Court of Appeal, if I may say with the utmost respect, appeared to be under the erroneous impression that an averment in pleadings is synonymous with a deposition in an affidavit in support of an application. This is clearly not the case. So too, an address of Counsel in moving an application is not the evidence in support of such an application. The evidence is the deposition contained in the affidavit in support thereof.

— Iguh JSC. Magnusson v. Koiki (1993) – SC.119/1991

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