(2019) lpelr-47206(ca) · 2019. 6. 26. · authority & anor (2010) lpelr-2089(sc) at page 32,...

UKPAI v. OMOREGIE & ORS

CITATION: (2019) LPELR-47206(CA)

In the Court of AppealIn the Benin Judicial Division

Holden at Benin

ON FRIDAY, 5TH APRIL, 2019Suit No: CA/B/463/2013

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of AppealMOORE ASEIMO ABRAHAM ADUMEIN Justice, Court of Appeal

BetweenEMMANUEL UKPAI-APPELLANT/ CROSS RESPONDENT - Appellant(s)

And1. MRS FLORENCE OMOREGIE-RESPONDENT2. PC. SYLVESTER UGIAGBE (448504)(IPO EVBUOTUBU POLICE STATION)3. INSPECTOR FRIDAY(INSPECTOR CRIME, EVBUOTUBU POLICESTATION)4. S.P GABRIEL EZEH(DIVISIONAL POLICE OFFICER, EVBUOTUBUPOLICE STATION)5. COMMISSIONER OF POLICE, EDO STATE-RESPONDENT/CROSS APPELLANT

- Respondent(s)

RATIO DECIDENDI

(201

9) LP

ELR-47

206(

CA)

1. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether by the provisions ofthe Fundamental Rights (Enforcement Procedure) Rules, the Court can treat failure to file a process within the timeallowed by the Rules as an irregularity"...Secondly, the argument of learned 2nd - 5th Respondents/ Cross Appellants'Counsel shows a gross misconception of the provisions of the Fundamental Rights Enforcement Procedure Rules.There is no time limit to file a further affidavit. However, by Order 2 Rule 6, the 2nd - 5th Respondents/CrossAppellants who was Respondent at trial was the one obliged to file a counter-affidavit within 5 days of service of theapplication. ?Be that as it may, even if there were an infraction of the Rules, Order 9 of the Fundamental RightsEnforcement Procedure Rules of 2009 provides as follows: "Where at any stage in the course of or in connection withany proceedings there has, by any reason of anything done or left undone, been failure to comply with therequirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullifysuch proceedings except as they relate to- (i) Mode of commencement of the application; (ii) The subject matter isnot within Chapter IV of the Constitution or the African Charter on Human and People's Rights (Ratification andEnforcement) Act." Order 9 provides that such infraction may be treated as an irregularity not sufficient to vitiate theproceedings. This is because the 2nd - 5th Respondents at trial had adequate opportunity to file a further counter-affidavit which they failed to do. In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page12-15, Para. D-B, My Learned Brother, Abiru JCA said as follows: "It is not in contest that the provisions of theFundamental Rights (Enforcement Procedure) Rules, 2009 give a respondent desirous of filing a response to aFundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a periodof five days to do so. There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 forseeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of a HumanRights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil ProcedureRules of the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contain,provision requiring leave to file an affidavit out of time and for extension of time to file processes. It is, however, tritelaw that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, theprovisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision -Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to fileprocesses within the time stipulated in the Rules should be. Its Order 9 reads: "Where at any stage in the course ofor in connection with any proceedings, there has by reason of anything done or left undone, been a failure to complywith the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may notnullify such proceedings except as they relate to: i. Mode of commencement of the application; ii. The subject matteris not within Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification andEnforcement) Act." In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules,2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, andnot as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is notwithin Chapter 4 of the Constitution. The processes filed by the Appellant, i.e. the written address, the counteraffidavit and the notice of preliminary objection, did not relate to the mode of commencement of the application, nordid they relate to a subject matter that is not within Chapter 4 of the Constitution. The lower Court made noreference to the provisions of Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. It is alwaysessential for a Court faced with the interpretation of the provisions of a statute to adopt a holistic approach and tointerpret the provisions dealing with a subject matter together to get the true intention of the lawmakers - Abia StateUniversity, Uturu vs Otosi (2011) 1 NWLR (Pt.1229) 605, Ayodele vs State (2011) 6 NWLR (Pt.1243) 309 and NationalUnion of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt.1307) 170.Perhaps, if the lower Court had considered the provisions of Order 9 of the Fundamental Rights (EnforcementProcedure) Rules, 2009, it would not have declared the processes filed by the Appellant incompetent." Also, theSupreme Court per Rhodes-Vivour, JSC said in Nwadiogbu & Ors v. Anambra/Imo River Basin DevelopmentAuthority & Anor (2010) LPELR-2089(SC) at Page 32, Para. A-C as follows: "Time is of the essence/especiallywhere the liberty of anyone is in issue, and so, strict adherence to procedural formalities ought to be put aside whenhearing matters on human rights. The Court should rise up and be seen to restore the rights of anyone unjustlydetained. Decisions should be delivered if possible immediately or a few days after hearing arguments." The furtheraffidavit filed by the Appellant/Cross Respondent cannot be said to be incompetent. This is because the processcomplained of (in this case the further affidavit) does not relate to the mode of commencing the application or thesubject matter is not within the ambit of the provisions of Chapter Four of the Constitution or the African Charter onHuman and People's Rights (Ratification and Enforcement) Act. Competency goes to the admissibility of a document.Thus, having shown that the said affidavit is not incompetent, the argument of the Cross Appellant/2nd - 5thRespondents' Counsel cannot hold water."Per OGUNWUMIJU, J.C.A. (Pp. 15-20, Paras. D-F) - read in context

(201

9) LP

ELR-47

206(

CA)

2. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether leave must besought and obtained for an applicant to file a further affidavit in an action for the enforcement of fundamental rights"The Cross Appellants/2nd - 5th Respondents predicated their cross appeal on theissue of the affidavit evidence, particularly the further affidavit that was filed by the Cross Respondent/Appellant.One of the issues raised by the Cross Appellants/ 2nd - 5th Respondents challenged the procedure by which theclaim of the Cross Respondent/Appellant was proved. Order 6 of the Fundamental Rights Enforcement ProcedureRules provides as follows: 1. No grounds shall be relied upon or any relief sought at the hearing of the applicationexcept the grounds and the reliefs are set out in the statement. 2. The Court may, on the hearing of the applicationallow the statement to be amended and may allow further affidavits to be used if they deal with new matters arisingfrom the counter affidavit of any party to the application. 3. The application for amendment shall be supported by anexhibit of the proposed application to be amended and may be allowed by the Court upon such terms or otherwiseas may be just. 4. Where a party who obtained an order to amend fails to comply with the order within the timeallowed by the order of Court, such party shall be deemed to have abandoned the amendment unless he obtains anorder of Court for extension of time to file the same. 5. Where the applicant intends to ask to be allowed to amendhis statement or use further affidavits, he must put the other party or parties on notice of his intention to amend. Inthis case, the Appellant/Cross Respondent filed a further affidavit to the counter affidavit of the 2nd - 5thRespondents/Cross Appellants. It is to be noted that Order 6 Rule 3 talks only about the need for leave to amend theoriginal application. In fact, Order 6 Rule 2 gives the Court leave to allow further affidavit to be used where they dealwith new matters arising from the counter-affidavit of the Respondent. It is my humble view that the learned trialjudge was right in considering the further affidavit and that no special leave need be sought nor obtained by theApplicant to file a further affidavit. There can be no miscarriage of justice where the Respondent is allowed to file afurther counter-affidavit but failed to do so as in this case."Per OGUNWUMIJU, J.C.A. (Pp. 13-15, Paras. D-D) -read in context

3. COURT - DUTY OF COURT: Duty of Court to protect the fundamental rights of citizens"I must add by way of emphasis that it behoves the Courts as the veritable agencyfor the protection and preservation of rule of law to ensure that persons and institutions operate within the definedambit of constitutional and statutory limitations. Where agencies of government are allowed to operate at large andat their whims and caprices in the guise of performing their statutory duties, the end result will be anarchy,licentiousness, authoritarianism and brigandage leading to the loss of the much cherished and constitutionallyguaranteed freedom and liberty. The Supreme Court put the issue in proper perspective in the case of A.G.ADAMAWA STATE & ORS. VS. A.G FEDERATION (2005) 18 NWLR (PT. 958) 581 wherein it was held per EjiwumiJSC that: "It is in my view manifest that where a party considered that his constitutional rights have been breached,that party can quite properly seek the invocation of the Courts powers to protect the invasion of such rights. If theconstitution is to be upheld and undoubtedly it must be, then a breach of it or the likelihood of its being breachedmust be capable not only of being vindicated but also of being prevented." In the instant case the invasion of theplace of business of the Appellant/Cross Respondent and his arrest and detention based on a complaint by the 1stRespondent that her missing vehicle is similar to the one in the Appellant's sales depot without any preliminaryinvestigation or inquiry smacks of reckless abuse of power that should not be allowed to persist in this country if weare to make progress, socially, politically and economically. The Courts should indeed rise up to protect the helplessand hapless citizenry from wanton abuse of powers by agencies of government and one of such modes of deterrenceis the award of punitive or exemplary damages in the event of any such breach of the fundamental right of anyaggrieved person."Per OSEJI, J.C.A. (Pp. 36-38, Paras. E-B) - read in context

4. DAMAGES - AWARD OF DAMAGES: Purpose/object of the award of damages"Generally, the primary purpose of making an award of damages is for compensation. Damages may either begeneral and exemplary/punitive." Per OGUNWUMIJU, J.C.A. (P. 24, Paras. F-G) - read in context

5. DAMAGES - GENERAL DAMAGES: Guiding principles for the award of general damages"General damages, also termed direct or necessary damages are damages that thelaw presumes and which often flows from the nature and type of wrong complained of. It aims at compensating aparty for a harm that resulted from a wrongful act. General damages need not be specifically proved. See UBN Plc v.Ajabule & Anor (2011) LPELR-8239 (SC), (2011) 18 NWLR Pt. 1278, Pg.152 SC. General damages are awardedbased on losses that flowed naturally from the adversary and it is based on presumption of law and doesn't have tobe pleaded or proved. The award of general damages is within the discretion of the judge. Usually, where an awardof general damages has been made, an appellate Court would ordinarily not interfere except where the trial judgefailed to take relevant matters into account, acted under a misapprehension of law, the amount awarded was eithertoo low or high and where failure to interfere would amount to injustice. See Cameroon Airlines v. Otutuizu (2011)LPELR-827 (SC), (2011) 4 NWLR Pt. 1238, Pg. 512 SC."Per OGUNWUMIJU, J.C.A. (P. 25, Paras. A-E) - read incontext

(201

9) LP

ELR-47

206(

CA)

6. DAMAGES - EXEMPLARY DAMAGES: Nature of exemplary damages"...exemplary damages has been described as an intermix of general and punitivedamages. While speaking on the nature of exemplary damages, the Supreme Court in Eliochin (Nig) Ltd & Orsv. Mbadiwe (1986) LPELR-1119 (SC), (1986) 1 NWLR Pt. 14, Pg. 47 SC held as follows: "The primary object of anaward of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punishthe defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, inaddition to the normal compensatory damages, damages which go by various names to wit; exemplary damages,punitive damages; vindictive damages, even retributory damages can come into play whenever the defendant'sconduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence,flagrant disregard of the law and the like." The Court in Kabo Air Ltd v. Mohammed (2014) LPELR-23614 (CA), (2015)5 NWLR Pt. 1451, Pg.38 (CA) also said: "Punitive damages which are also referred to as exemplary damages areintended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in thefuture. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment aswhere, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law - University ofCalabar v. Orji (2012) 3 NWLR (Pt. 1288) 418 and Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207."Exemplary damages, otherwise known as punitive damages is usually awarded to meet the end of punishment. Aclaim for exemplary damages need not be expressly pleaded. It is sufficient if the facts pleaded supports the awardof exemplary damages. See CBN & Ors v. Okojie (2015) LPELR-24740 (SC), (2015) 14 NWLR Pt. 1479 at 321 SC.Thus, the claim for exemplary damages must be shown to have resulted from the malicious act of a party before itcan be awarded."Per OGUNWUMIJU, J.C.A. (Pp. 25-27, Paras. F-D) - read in context

7. DAMAGES - AWARD OF DAMAGES: Position of the law on the award of damages for breach of fundamentalright(s)"It is well settled law that in a fundamental rights case, the award of damagesnaturally flows from the violation of the right alleged to have been breached. The purpose of awarding damages in afundamental right case is to compensate a person for the injury suffered by him. Thus, once it is established that theright of a person has been violated and infringed upon, compensatory and in some cases, exemplary damages wouldbe attracted. See Abiola v. Abacha (1998) 1 HRLRA 447, (1997) 6 NWLR Pt. 509, Pg. 413; Punch (Nigeria) Ltd v. A-GFederation (1998) 1 HRLRA 448. Usually, the damages to be awarded in a breach of a person's fundamental rightmust be such that would amount to a fair and balanced estimate for the alleged breach that resulted from theRespondent's conduct. See Arulogun v. Commissioner of Police, Lagos State & Ors (2016) LPELR-40190 (CA).However, subject to certain derogations permitted by law, fundamental rights are sometimes considered to be abovethe ordinary laws of the land. The protection of these rights is enshrined in Chapter Four of the 1999 Constitution ofthe Federal Republic of Nigeria (as amended). The Constitution also makes provision as to the nature of remedy thatwould be readily available to a person whose rights have been breached under the said chapter. It is trite law thatconsideration must be given to the circumstances in which the Appellant was arrested and whether he was able toprove same. The Supreme Court in Jaja v. COP Rivers State (2012) LPELR-20621 (SC), per Muntaka-Coomassie at Pg.28-28, Para. F-D said as follows: "The Appellant's claim is in connection with the breach of his fundamental rights tohis liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained. i.e. that hisfundamental rights has been violated. If this is proved, by virtue of the provisions of Section 35(6) of theConstitution, the complainant is entitled to compensation and apology, where no specific amount is claimed. Wherea specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount would be justifiedto compensate the victim of the breach. In this respect, the common law principles on the award of damages do notapply to matters brought under the enforcement of fundamental rights procedure-the procedure for fundamentalrights was specifically promulgated to protect the Nigerians' fundamental rights from abuse and violations byauthorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if nospecific amount is claimed."Per OGUNWUMIJU, J.C.A. (Pp. 27-29, Paras. D-E) - read in context

8. DAMAGES - AWARD OF DAMAGES: What the Court considers in awarding damages/compensation to a person forthe deprivation of his right to personal liberty"...The attached exhibits AA3, AA4, AA5 and AA6 of the further affidavit revealed theinjury that the Appellant suffered to his reputation as a result of the said arrest. In giving consideration to the formerso as to make an award of damages, the Court in Igweokolo v. Akpoyibo & Ors (2017) LPELR-41882 (CA) said:"In assessing the compensation payable to the Appellant, cognizance should be taken of the pain and sufferingoccasioned to the Appellant by deprivation of his personal liberty in consequence of his detention as well as theindignity and emotional stress arising from the said detention. The amount to be awarded as compensation mustreflect the abhorrence of society and the law for the violation of fundamental rights to personal liberty since personalliberty is a commodity of inherently high value. See Odogu v. AG Federation (1996) LPELR - (2228) 1 at15-16."Per OGUNWUMIJU, J.C.A. (Pp. 34-35, Paras. E-D) - read in context

(201

9) LP

ELR-47

206(

CA)

9. POLICE - POWERS OF THE POLICE: Requirements of the law as regards the exercise of the powers of the police tomake an arrest"...the police must always exercise caution before making an arrest. While speakingon the nature of this right, this Court in Mittin v. COP Bayelsa State & Ors (2017) LPELR-43064 (CA) at page 15 -16, Para D-C said as follows: "The powers of arrest of suspected offenders is vested in the police and no one can takethat away from them. This general powers invested in the police to arrest and detain suspected criminals isstatutory. Section 4 of the Police Act Cap 339, LFN, 1990 provides thus:- The police shall be employed for theprevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protectionof life and property and the due enforcement of all laws and regulations with which they are directly charged Section29 of the Police Act specifically empower the Police to arrest and detain suspected persons whom the policereasonably suspect to have stolen item in his possession. Decisions such as Alameyesisegha Vs. Igoloiwari (2007) 7NWLR (Pt.) 524; Dokubo Asari Vs. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320, 360; Shola Abu Vs.COP CHR 18, all go to confirm the powers of arrest and detention vested in the Police. However, in the exercise ofthose powers of arrest and detention, the Police need to be cautious in their approach given the provision of Section35 (1) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended)." Constitutionally, S. 35(1)(c) allowsthe Police to make an arrest on the basis of reasonable suspicion. Also, the Police is statutorily empowered to makean arrest under the police act. Specifically, S. 4 of the Police Act provides as follows: "The police shall be employedfor the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, theprotection of life and property and the due enforcement of all laws and regulations with which they are directlycharged, and shall perform such military duties within or outside Nigeria as may be required of them by, or underthe authority of this or any other Act." The Police is also empowered under Section 24 of the Police Act to make anarrest on the basis of reasonably suspecting that a crime has been committed. Constitutionally, under Section 35(6)of the 1999 Constitution as amended, an infringement on the right of a person's personal liberty shall bring aboutcompensation and public apology from the appropriate authority or persons. However, while the Police isempowered to act on the basis of reasonable suspicion, it is not empowered to detain a person in anticipation thatthe person has committed an offence. SeeEkanem v. Assistant Inspector General of Police Zone 6 (2008) 5 NWLRPart 1079, Pg. 97 CA. The power of the Police to arrest and detain any person has to be exercised within the confinesof laid down law. Usually, a proper investigation has to be carried out before an arrest can be made. And until thereis sufficient evidence to caution and charge a suspect, it is unlawful to make an arrest. Thus, it is completely wrongfor the Police to arrest a person before getting any evidence to ground their suspicion that he had committed anoffence. See Fawehinmi v. IGP (2002) LPELR 1258-SC, (2002) 7 NWLR Pt. 767 at 606 SC."Per OGUNWUMIJU,J.C.A. (Pp. 31-34, Paras. C-B) - read in context

(201

9) LP

ELR-47

206(

CA)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering

the Leading Judgment): This is an appeal against the

judgment of the Federal High Court sitting at Benin

delivered by Honourable Justice P.I. Ajoku on 20/9/2013

where in judgment was g iven in favour o f the

Appellant/Cross-Respondent with an award of damages for

N300,000.00 (Three Hundred Thousand Naira).

The facts that lead to this appeal are as follows:

The Appellant/Cross-Respondent, a car dealer, alleged that

he was arrested by the 2nd – 4th Respondents/Cross-

Appellants because of the instigation made to them by the

1st Respondent that he stole her RAV-4 car. The allegation

that led to the arrest of the Appellant/Cross-Respondent

was premised on the allegation that the 1st Respondent

saw her stolen car in the custody of the Appellant/Cross-

Respondent. The Appellant/Cross Respondent was

thereafter arrested and taken to the State Criminal

Investigation Department where it was revealed in a

subsequent investigation carried out by the O.C anti-vehicle

theft that a difference existed in the Chassis and Engine

Number of the RAV-4 car found in the custody of the

1

(201

9) LP

ELR-47

206(

CA)

Appellant/Cross-Respondent who is a car dealer and that of

the car of the 1st Respondent which was alleged to have

been stolen by the Appellant/Cross-Respondent.

Consequently, the Police discharged the Appellant/Cross-

Respondent and dismissed the allegation against him.

Thereafter, the Appellant/Cross-Respondent alleged that he

suffered injury to his reputation which affected his business

fortunes and exalted positions he held in the society. The

Appellant/Cross-Respondent then filed an application for

the enforcement of his fundamental right at the trial Court

claiming the following reliefs:

a. A DECLARATION that the 1st Respondent’s

complain was malicious, vindictive, oppressive and

unfounded in law and facts.

b. A DECLARATION that the detention of the

Applicant from on the 19th to 20th January, 2013 is

illegal, debasing, unconstitutional and null and void

as it violates the Applicant’s fundamental rights.

c. A DECLARATION that refusing of bail to the

Applicant on 19th January 2013 is i l legal,

unconstitutional, oppressive, null and void as it

violates the Applicant’s fundamental rights.

2

(201

9) LP

ELR-47

206(

CA)

d. A DECLARATION that the mode of harassment and

intimidation against the Applicant is oppressive,

unconstitutional, null and void as it violates the

Applicant’s fundamental rights under Section 41 of

the Constitution of the Federal Republic of Nigeria

1999 (As Amended).

e. A DECLARATION that the detention, harassment of

the Applicant by the 1st – 4th Respondents is illegal,

oppressive, unconstitutional, null and void as it

violates the Applicant’s fundamental rights enshrined

under Section 34,35,36,37, 40 and 41 of the 1999

Constitution of the Federal Republic of Nigeria.

f. AN ORDER for general, aggravated and exemplary

damages in favour of the Applicant for the sum of

Fifty Million Naira (N50,000,000.00) only against the

Respondents jointly and severally as reparation for

the series of arrest and detention, humiliation,

harassment and intimidation of the Applicant without

proper investigation by 2nd – 4th Respondents.

The learned Trial Judge found in favour of the

Appellant/Cross-Respondent against only the 2nd – 5th

Respondents at trial and ordered that the sum of Three

Hundred Thousand Naira (N300,000.00) be paid to him as

3

(201

9) LP

ELR-47

206(

CA)

damages by the said 2nd – 5th Respondents at trial.

Dissatisfied with the judgment, specifically the quantum of

damages, the Appellant filed a Notice of Appeal on 9/10/13.

Record was transmitted on 27/11/13. The Appellant’s brief

was filed on 8/1/14. The Appellant who is also the Cross-

Respondent filed his Cross-Respondent’s brief on 12/2/16

pursuant to an order of Court made on 5/2/16.

The 2nd - 5th Respondents also filed a Notice of Cross-

Appeal on 23/1/14 wherein complaints were articulated

against the merit of the judgment of the learned trial judge

in its entirety. The 2nd – 5th Respondents’ brief was filed

on 8 /2 /18 and deemed f i l ed on 28 /2 /18 . The

Respondents/Cross-Appellants’ filed an amended 2nd – 5th

Respondents/Cross-Appellants’ brief on 8/2/18 and deemed

filed on 28/2/18. The proof of service showed that the 1st

Respondent was served but did not appear or file any

processes before this Court. This is not surprising as

neither the Appellant/Cross Respondent nor the 2nd – 5th

Respondents/Cross Appellants has any relief against the 1st

Respondent whose presence as party on the record in this

4

(201

9) LP

ELR-47

206(

CA)

appeal is a mere surplusage and superfluous.

In the brief settled by U.S. Musa Esq., the Appellant raised

a sole issue for determination as follows:

Whether the general damages awarded against the

2nd – 5th Respondents by the trial judge was

adequate having regards to the injuries suffered by

the Appellant on account of the acts of the 2nd - 5th

Respondents.

In the 2nd – 5th Respondents’ brief settled by J.S Ohiafi

Esq., the Respondents raised also a sole issue for

determination as follows:

On whether award of general damages is within the

precinct of a trial Court and when appellate Court will

interfere thereof.

The following issues were identified by the 2nd – 5th

Respondents/Cross-Appellants in his amended Cross-

Appellant’s brief for the determination of this Cross Appeal:

a. Whether the trial Court was right to have assumed

jurisdiction in an incompetent affidavit (further

affidavit) without leave of Court and denial of

opportunity to respond to same.

b. Whether the trial Court can validly make findings

on material issues of facts contained in the

conflicting affidavit without oral evidence to resolve

the conflict.

(201

9) LP

ELR-47

206(

CA)

5

(201

9) LP

ELR-47

206(

CA)

c. Whether the trial Court was right when it failed to

properly evaluate the affidavit evidence before

arriving at its findings.

d. Whether the trial Court was right when proceeded

to hear the Appellant/Cross-Respondent suit without

the reply of the Respondent/Cross Appellant despite

the new issues raised.

e. Whether the trial Court was right when its awarded

monetary compensation without valid ground having

not consider the numerous conf l icts and

incompetents affidavit evidence tagged further

affidavit by the Appellant/Cross Respondent.

The Appellant/Cross-Respondent on the other hand in his

Cross-Respondent’s brief identified the following issues for

determination of this Cross Appeal:

a. Whether reliance on an affidavit filed outside the

stipulated time in reaching judgment render the

judgment void.

b. Whether there was proper evaluation of the

affidavit evidence filed at the lower Court.

In the determination of the main appeal, I will adopt the

issue set forth in the Appellant/Cross-Respondent’s brief as

follows:

1. Whether the general damages awarded against the

6

(201

9) LP

ELR-47

206(

CA)




Respondents.

And in the determination of the cross-appeal, I will

crystall ize the issues set forth in the 2nd – 5th

Respondents’/Cross-Appellants brief into a sole issue as

follows:

2. Whether it was proper for the learned Trial Judge

to rely on all the aff idavit evidence of the

Appellant/Cross-Respondent in arriving at its

decision.

It is my humble view that in determining the complaints of

both sides, I should address the complaint of the 2nd – 5th

Respondents/Cross Appellants regarding the findings of the

learned Trial Judge in relation to the finding of liability of

the 2nd-5th Respondents/Cross Appellants before

considering the complaints of the Appellant/Cross

Respondent regarding the quantum of compensation to be

paid to him. Therefore, I will consider the cross appeal

first.

ISSUE 1

Whether it was proper for the learned Trial Judge to

re l y on a l l the a f f idav i t ev idence o f the

Appellant/Cross-Respondents in arriving at its

decision.

(201

9) LP

ELR-47

206(

CA)

7

(201

9) LP

ELR-47

206(

CA)

The Cross-Appellant’s Counsel argued that the Learned

Trial Judge erred when he failed to properly evaluate the

affidavit evidence before him. Counsel argued that the test

of reasonableness ought to have been evaluated before the

delivery of judgment. Counsel further argued that the trial

Court erred when it failed to evaluate the evidence

properly which occasioned a miscarriage of justice and led

to the award of damages. Counsel cited David Taylor &

ANR v. Edwin Ogheneovo CA/B/102/2006 (2011) Vol.

51 WRN 1-182.

Cross Appellants’ Counsel submitted that in considering

whether an offence has been committed, the test of what

amounts to a reasonable belief is objective and not

subjective. Counsel cited Commissioner of Police Ondo

State v. Obolo (1989) 5 NWLR (Pt. 120) at Page 138,

Para E-F.

Cross Appellants’ Counsel submitted that the Appellate

Court is empowered to evaluate the evidence where the

trial Court failed to do so properly. Counsel cited Gabriel

Iwuoha & Anor v. Nigerian Postal Services Ltd & Anor

(2003) LRCN Pg. 1622 at 1645 F.K. Counsel further

submitted that both the trial and appellate judge have an

equal right to evaluate evidence as

8

(201

9) LP

ELR-47

206(

CA)

same is not within the exclusive preserve of the trial judge.

Counsel cited Alhaji Amina Ishola v. Union Bank of

Nigeria (2005) (127) LRCN Pg. 1209 at 1228.

Cross-Appellant’s Counsel argued that as established by

case law, a judge before reaching a decision must put the

facts on an imaginary scale of justice to see where it tilts.

Counsel cited Mogaji v. Odofin (1979) 1 SC 91. Counsel

argued that it is not enough to set evidence out without

evaluating it and that the method of evaluating evidence as

set out in Mogaji v. Odofin is not sacrosanct. This is

because a trial Court is entitled to follow its own method of

considering or weighing the totality of the evidence placed

before it provided that whatever method the final decision

arrived at substantially confirms with the principle and

justice of the case. Counsel cited Doma v. Ogiri (1998) 3

NWLR Pt. 541 Page 246. Counsel further argued that not

only did the learned trial judge failed to follow the method

for evaluating evidence as laid down in Mogaji v. Odofin

(supra), he also did not bear in mind the principles of the

case and the method that was adopted.

9

(201

9) LP

ELR-47

206(

CA)

Cross-Appellant Counsel argued that before reaching his

final decision, it is mandatory for the Trial Judge to resolve

the most important issues that arise in an affidavit

evidence.

Cross-Appellant Counsel further argued that the Learned

Trial Judge in this case erred when he relied on the Cross-

Respondent’s further affidavit that was filed without leave

of Court and allowed it to form part of the ratio decidendi

of his judgment. Counsel argued that the failure of the

Court which regarded the issue as a technicality

occasioned a miscarriage of justice as the 2nd – 5th

Respondents/Cross Appellants ought to have been allowed

to respond to the further affidavit. Counsel further argued

that by Order II Rule 7 of the Fundamental Rights

Enforcement Procedure Rules, an Applicant who is served

with a Respondent’s written address may file within 5 days

of being served, an address on point of law which may be

accompanied by a further affidavit. Counsel argued that a

further affidavit would only be permitted if it deals with

new matters arising from the Respondent’s counter

affidavit.

Counsel argued that the Court below refused to advert its

10

(201

9) LP

ELR-47

206(

CA)

mind to the fact that leave of Court must be sought and

obtained when an affidavit touched on new issues/re-

argument. Counsel argued that in line with the principles of

audi alteram partem, if the Appellant/Cross Respondent is

permitted to raise new issues, the Court is obliged to let

the 2nd – 5th Respondents/Cross-Appellants respond to

them. Counsel further argued that the Appellant/Cross

Respondents should not take advantage of a reply to the

2nd – 5th Respondents/ Cross Appellants’ written address

to re-argue the case or further duplicate the content of his

address. Counsel cited Okpala v. Ibeme (1989) 2 NWLR

Pt. 102 Pg. 208; Muoyo v. Fidelity Bank Plc (2009)14

WRN 75; Longe v. First Bank of Nigeria Plc (2006) 3

NWLR Pt. 967, Pg. 228-256

Cross Appellants’ Counsel argued that there were material

contradictions in the affidavit evidence of the Cross

Respondent and to this extent, the trial Court was bound to

invite parties to be heard orally in order to clear the issues

and resolve the conflict. Counsel cited Falola v. UBN Plc

(2005) 7 NWLR (Pt. 924) 405; Anzaku v. Gov. of

Nassawara State (2005) 5 NWLR (Pt. 919) 492 Para.

H.B and 502 Para. C-E.

11

(201

9) LP

ELR-47

206(

CA)

Counsel submitted that the trial Court erred in his

judgment when he proceeded to deliver judgment in favour

of a party without calling for oral evidence to resolve the

apparent conflict in the affidavit evidence. Counsel cited

the provision of Section 116 of the Evidence Act, 2011 and

Falola v. UBN (Supra) Pg. 420 Para F.H; E.S & CS

(LTD) NMB LTD (2005) 7 NWLR (PT. 924) 215 at 24a

Paras D-G.

Counsel further argued that there was no credible evidence

before the trial Court to warrant the award of any damages.

Counsel argued that the Court below acted upon

inadmissible evidence which is the incompetent further

affidavit.

Cross Respondent’s Counsel that there was proper

evaluation of the affidavits before the trial Court and there

was nothing to reconcile by oral evidence. This is because

the parties were given room to adumbrate on their written

addresses and file some further authorities, if needed.

Cross Respondent’s Counsel argued that the Cross

Appellants hid under the guise of investigating an

allegation to fail to answer the affidavit evidence detailing

the manner of infringement on the Appellant’s fundamental

rights.

12

(201

9) LP

ELR-47

206(

CA)

Counsel cited Garuba v. Yahaya (2008) 5 WRN Pg 1 at

4 R.1.; Obiazikwor v. Obiazikwor (2007) 37 WRN 106

at 117 R.7

Cross Respondent Counsel submitted that there was no

injustice occasioned to the Cross-Appellants because of the

reliance placed on the further affidavit that was filed out of

time. Counsel further argued that the ground of appeal

bothers on technicality as admitting the said further

affidavit which was filed out of time cannot vitiate or lead

to the setting aside of the judgment of a trial Court.

Counsel cited Amaechi v. INEC (2008) 10 WRN, Pg 1 at

30 R.14; Unilorin v. Akinyanju (2008) 14 WRN, Pg.

184 at 186 R.2; AG Federation v. Ag Abia State (2001)

40 WRN,1.

OPINION

The Cross Appellants/2nd – 5th Respondents predicated

their cross appeal on the issue of the affidavit evidence,

particularly the further affidavit that was filed by the Cross

Respondent/Appellant. One of the issues raised by the

Cross Appellants/ 2nd – 5th Respondents challenged the

p r o c e d u r e b y w h i c h t h e c l a i m o f t h e C r o s s

Respondent/Appellant was proved.

Order 6 of the Fundamental Rights Enforcement Procedure

Rules provides as follows:

13

(201

9) LP

ELR-47

206(

CA)

1. No grounds shall be relied upon or any relief sought at

the hearing of the application except the grounds and the

reliefs are set out in the statement.

2. The Court may, on the hearing of the application allow

the statement to be amended and may allow further

affidavits to be used if they deal with new matters arising

from the counter affidavit of any party to the application.

3. The application for amendment shall be supported by an

exhibit of the proposed application to be amended and may

be allowed by the Court upon such terms or otherwise as

may be just.

4. Where a party who obtained an order to amend fails to

comply with the order within the time allowed by the order

of Court, such party shall be deemed to have abandoned

the amendment unless he obtains an order of Court for

extension of time to file the same.

5. Where the applicant intends to ask to be allowed to

amend his statement or use further affidavits, he must put

the other party or parties on notice of his intention to

amend.

In this case, the Appellant/Cross Respondent filed a further

affidavit to the counter affidavit of the 2nd – 5th

Respondents/Cross Appellants.

14

(201

9) LP

ELR-47

206(

CA)

It is to be noted that Order 6 Rule 3 talks only about the

need for leave to amend the original application. In fact,

Order 6 Rule 2 gives the Court leave to allow further

affidavit to be used where they deal with new matters

arising from the counter-affidavit of the Respondent.

It is my humble view that the learned trial judge was right

in considering the further affidavit and that no special leave

need be sought nor obtained by the Applicant to file a

further affidavit. There can be no miscarriage of justice

where the Respondent is allowed to file a further counter-

affidavit but failed to do so as in this case.

Secondly, the argument of learned 2nd – 5th Respondents/

Cross Appellants’ Counsel shows a gross misconception of

the provisions of the Fundamental Rights Enforcement

Procedure Rules. There is no time limit to file a further

affidavit. However, by Order 2 Rule 6, the 2nd – 5th

Respondents/Cross Appellants who was Respondent at trial

was the one obliged to file a counter-affidavit within 5 days

of service of the application.

Be that as it may, even if there were an infraction of the

Rules, Order 9 of the Fundamental Rights

15

(201

9) LP

ELR-47

206(

CA)

Enforcement Procedure Rules of 2009 provides as follows:

“Where at any stage in the course of or in connection

with any proceedings there has, by any reason of

anything done or left undone, been failure to comply

with the requirement as to time, place or manner or

form, the failure shall be treated as an irregularity

and may not nullify such proceedings except as they

relate to-

(i) Mode of commencement of the application;

(ii) The subject matter is not within Chapter IV of the

Constitution or the African Charter on Human and

People's Rights (Ratification and Enforcement) Act.”

Order 9 provides that such infraction may be treated as an

irregularity not sufficient to vitiate the proceedings. This is

because the 2nd – 5th Respondents at trial had adequate

opportunity to file a further counter-affidavit which they

failed to do.

In Nigeria Customs Service Board v. Mohammed

(2015) LPELR-25938(CA) at Page 12-15, Para. D-B,

My Learned Brother, Abiru JCA said as follows:

“It is not in contest that the provisions of the

Fundamental Rights (Enforcement Procedure) Rules,

2009 give a respondent desirous of filing a

16

(201

9) LP

ELR-47

206(

CA)

response to a Fundamental Right application, either

by way of address, counter affidavit or notice of

preliminary objection, a period of five days to do so.

There is no provision in the Fundamental Rights

(Enforcement Procedure) Rules, 2009 for seeking

either extension of time to file processes or leave to

file processes out of time. It is correct that Order 15

Rule 4 of the Fundamental Rights (Enforcement

Procedure) Rules, 2009 says that where in the course

of a Human Rights proceedings any situation arises

for which there are no adequate provisions in the

Rules, the Civil Procedure Rules of the Court shall

apply and it is also correct that High Court of Kaduna

State Civil Procedure Rules contain, provision

requiring leave to file an affidavit out of time and for

extension of time to file processes.

It is, however, trite law that where the Fundamental

Rights (Enforcement Procedure) Rules, 2009 make

provision for a situation, the provisions of the High

Court of Kaduna State Civil procedure Rules cannot

be imported to supplant that provision - Ezeadukwa vs

Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs

Chukwuogor (2006) & NWLR (Pt.979) 302. The

17

(201

9) LP

ELR-47

206(

CA)

Fundamental Rights (Enforcement Procedure) Rules,

2009 states clearly what the effect of failure to file

processes within the time stipulated in the Rules

should be. Its Order 9 reads:

"Where at any stage in the course of or in connection

with any proceedings, there has by reason of anything

done or left undone, been a failure to comply with the

requirement as to time, place or manner or form, the

failure shall be treated as an irregularity and may not

nullify such proceedings except as they relate to:

i. Mode of commencement of the application;

ii. The subject matter is not within Chapter 4 of the

Constitution or African Charter on Human and

Peoples Rights (Ratification and Enforcement) Act."

In other words, by the provisions of the Fundamental

Rights (Enforcement Procedure) Rules, 2009, a Court

is enjoined to treat failure to file a process within the

time allowed by the Rules as an irregularity, and not

as a nullifying factor, except it relates to the

commencement of the application, or that the subject

matter is not within Chapter 4 of the Constitution.

The processes filed by the Appellant, i.e. the written

18

(201

9) LP

ELR-47

206(

CA)

address, the counter affidavit and the notice of

preliminary objection, did not relate to the mode of

commencement of the application, nor did they relate

to a subject matter that is not within Chapter 4 of the

Constitution. The lower Court made no reference to

the provisions of Order 9 of the Fundamental Rights

(Enforcement Procedure) Rules, 2009. It is always

essential for a Court faced with the interpretation of

the provisions of a statute to adopt a holistic

approach and to interpret the provisions dealing with

a subject matter together to get the true intention of

the lawmakers - Abia State University, Uturu vs Otosi

(2011) 1 NWLR (Pt.1229) 605, Ayodele vs State

(2011) 6 NWLR (Pt.1243) 309 and National Union of

Road Transport Workers Vs Road Transport

Employers Association of Nigeria (2012) 10 NWLR

(Pt.1307) 170.

Perhaps, if the lower Court had considered the

provisions of Order 9 of the Fundamental Rights

(Enforcement Procedure) Rules, 2009, it would not

have declared the processes filed by the Appellant

incompetent.”

Also, the Supreme Court per Rhodes-Vivour, JSC said in

Nwadiogbu & Ors v. Anambra/Imo River Basin

Development Authority & Anor (2010)

19

(201

9) LP

ELR-47

206(

CA)

LPELR-2089(SC) at Page 32, Para. A-C as follows:

“Time is of the essence/especially where the liberty of

anyone is in issue, and so, strict adherence to

procedural formalities ought to be put aside when

hearing matters on human rights. The Court should

rise up and be seen to restore the rights of anyone

unjustly detained. Decisions should be delivered if

possible immediately or a few days after hearing

arguments.”

The further affidavit filed by the Appellant/Cross

Respondent cannot be said to be incompetent. This is

because the process complained of (in this case the further

affidavit) does not relate to the mode of commencing the

application or the subject matter is not within the ambit of

the provisions of Chapter Four of the Constitution or the

African Charter on Human and People’s Rights (Ratification

and Enforcement) Act. Competency goes to the

admissibility of a document. Thus, having shown that the

said affidavit is not incompetent, the argument of the Cross

Appellant/2nd – 5th Respondents’ Counsel cannot hold

water. This head of the argument is resolved against the

2nd – 5th Respondents/Cross Appellants.

20

(201

9) LP

ELR-47

206(

CA)

The 2nd – 5th Respondents/Cross Appellants made a song

and dance of the supposed failure of the learned trial judge

to properly evaluate the evidence of both sides. First, I can

find no conflicting affidavit evidence necessitating the

calling of oral evidence in this case. Most of the material

points in issue like the reason and manner of the arrest of

the Appellant/Cross Respondent were never controverted. I

have read the record, there can be no doubt that the

Appellant/Cross Respondent proved that his rights were

violated by a preponderance of evidence. I find no merit in

this vague complaint not properly articulated in the

grounds of cross appeal or in the brief of counsel. The

totality of this issue is resolved against the Cross

Appellants.

ISSUE 2

Whether the general damages awarded against the




Respondents.

Appellant/Cross Respondent’s Counsel argued that it is the

position of the law that the Court should award exemplary

damages once it is found that the

21

(201

9) LP

ELR-47

206(

CA)

2nd – 5th Respondents/Cross Appellants’ action was

oppressive, arbitrary or unconstitutional. Counsel cited

Obinna v. Commissioner of Police & 3 Ors (2007) 42

WRN PG 111 at 3 R.1; Onagoruwa v. IGP (1991) 5

NWLR Pt. 193 pages 647-648. Counsel argued that upon

the discovery that the acts of the Respondents were

reckless and unconstitutional, the learned trial judge ought

to have awarded exemplary damages.

Counsel submitted that it is the position of the law that a

successful party is entitled to enjoy the fruits of his

litigation. Counsel cited Balogun v. Mayode Entr. (Nig)

Ltd & 3 ors (2008) 15 WRN 138 at 141 at R-3. Counsel

submitted that the Appellant should be allowed to reap the

fruit of his judgment by granting him the damages that was

sought by him at the trial Court. Counsel argued that the

Appellant cannot be said to have enjoyed the fruits of the

judgment if the award of damages is ridiculously low as the

Appellant expended more than N300,000.00 (Three

Hundred Thousand Naira) on Solicitors fees during the

prosecution of the action at the trial Court.

Counsel submitted that it is the position of the law that an

22

(201

9) LP

ELR-47

206(

CA)

appellate Court will interfere with the damages awarded by

a trial Court if the amount awarded by the trial Court is

manifestly and extremely high or low or where the

estimated amount was so erroneous that no reasonable

tribunal will make same. Counsel cited AG Leventis (Nig)

Plc. v. Chief Christian Akpu (2007) 46 WRN Pg 1 at

14, R.9; Odogwu v. Ilombu (2007) 52 WRN 190 at 194,

R.4.

Counsel further submitted that the issue be resolved in the

Appellant’s favour as the Trial Court was wrong in

assessing the damages.

The 2nd – 5th Respondents/Cross Appellants’ Counsel

argued that the award of general damages is a matter

within the precinct of the trial Court which an Appellate

Court cannot tamper with except where the trial judge

acted under mistake of law or fact, acted in disregard of

the principles of law, acted under a misapprehension of

facts, took irrelevant matters into account, when injustice

would result if the Appellate Court does not interfere and

when the amount awarded is either ridiculously low or

relatively high as to be an erroneous estimate of the

damages. Counsel further argued that an Appeal Court is

entitled to interfere with

23

(201

9) LP

ELR-47

206(

CA)

an award of damages made by a trial Court where the

circumstance calling for such interference are shown to the

appellate Court.

The 2nd – 5th Respondents/Cross Appellants’ Counsel

argued that where a party claiming a relief fails to put all

his cards on the table through the use of cogent evidence,

the award of general damages, where the reliefs are

monetary would be affected. Counsel cited Newbreed

Organisation Ltd v. J.E Erhomosele SC. 212/2001

(2006) IJ.N.S.C PT (1-23) Per Mukhtar JSC (P.40)

Qergs E-7. Counsel submitted that the Appellant/Cross

Respondent did not give sufficient evidence to warrant the

first award that was given in his favour. Counsel cited

Edward Okwejiminor v. Gbakeji & Ors SC 67/2002

(2008) 33 NSCQR (P72) PG 863 at 867 ratio 2.

OPINION

The crux of this issue questions the damages that was

awarded to the Appellant because of the injuries sustained

by him from the breach of his fundamental rights through

the actions of the 2nd – 5th Respondents. Generally, the

primary purpose of making an award of damages is for

compensation. Damages may either be general and

exemplary/punitive.

24

(201

9) LP

ELR-47

206(

CA)

General damages, also termed direct or necessary damages

are damages that the law presumes and which often flows

from the nature and type of wrong complained of. It aims at

compensating a party for a harm that resulted from a

wrongful act. General damages need not be specifically

proved. See UBN Plc v. Ajabule & Anor (2011)

LPELR-8239 (SC), (2011) 18 NWLR Pt. 1278, Pg.152

SC. General damages are awarded based on losses that

flowed naturally from the adversary and it is based on

presumption of law and doesn’t have to be pleaded or

proved.

The award of general damages is within the discretion of

the judge. Usually, where an award of general damages has

been made, an appellate Court would ordinarily not

interfere except where the trial judge failed to take

relevant matters into account , acted under a

misapprehension of law, the amount awarded was either

too low or high and where failure to interfere would

amount to injustice. See Cameroon Airlines v. Otutuizu

(2011) LPELR-827 (SC), (2011) 4 NWLR Pt. 1238, Pg.

512 SC.

On the other hand, exemplary damages has been described

as an intermix of general and punitive damages. While

speaking on the nature of

25

(201

9) LP

ELR-47

206(

CA)

exemplary damages, the Supreme Court in Eliochin (Nig)

Ltd & Ors v. Mbadiwe (1986) LPELR-1119 (SC),

(1986) 1 NWLR Pt. 14, Pg. 47 SC held as follows:

“The primary object of an award of damages is to

compensate the plaintiff for the harm done to him or

a possible secondary object is to punish the defendant

for his conduct in inflicting that harm. Such a

secondary object can be achieved by awarding, in

addition to the normal compensatory damages,

damages which go by various names to wit; exemplary

damages, punitive damages; vindictive damages, even

retributory damages can come into play whenever the

defendant's conduct is sufficiently outrageous to

merit punishment as where it discloses malice, fraud,

cruelty, insolence, flagrant disregard of the law and

the like.”

The Court in Kabo Air Ltd v. Mohammed (2014)

LPELR-23614 (CA), (2015) 5 NWLR Pt. 1451, Pg.38

(CA) also said:

“Punitive damages which are also referred to as

exemplary damages are intended to punish and deter

blame worthy conduct and thereby prevent the

occurrence of the same act in the future. They are

awarded whenever the conduct of the defendant is

26

(201

9) LP

ELR-47

206(

CA)

sufficiently outrageous to merit punishment as where,

for instance, it discloses malice, fraud, cruelty,

insolence or flagrant disregard of the law - University

of Calabar v. Oji (2012) 3 NWLR (Pt. 1288) 418 and

Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt.

1290) 207.”

Exemplary damages, otherwise known as punitive damages

is usually awarded to meet the end of punishment. A claim

for exemplary damages need not be expressly pleaded. It is

sufficient if the facts pleaded supports the award of

exemplary damages. See CBN & Ors v. Okojie (2015)

LPELR-24740 (SC), (2015) 14 NWLR Pt. 1479 at 321

SC. Thus, the claim for exemplary damages must be shown

to have resulted from the malicious act of a party before it

can be awarded.

It is well settled law that in a fundamental rights case, the

award of damages naturally flows from the violation of the

right alleged to have been breached. The purpose of

awarding damages in a fundamental right case is to

compensate a person for the injury suffered by him. Thus,

once it is established that the right of a person has been

violated and infringed upon, compensatory and in some

cases, exemplary damages would be attracted.

27

(201

9) LP

ELR-47

206(

CA)

See Abiola v. Abacha (1998) 1 HRLRA 447, (1997) 6

NWLR Pt. 509, Pg. 413; Punch (Nigeria) Ltd v. A-G

Federation (1998) 1 HRLRA 448. Usually, the damages

to be awarded in a breach of a person’s fundamental right

must be such that would amount to a fair and balanced

estimate for the alleged breach that resulted from the

Respondent’s conduct. See Arulogun v. Commissioner of

Police, Lagos State & Ors (2016) LPELR-40190 (CA).

However, subject to certain derogations permitted by law,

fundamental rights are sometimes considered to be above

the ordinary laws of the land. The protection of these rights

is enshrined in Chapter Four of the 1999 Constitution of

the Federal Republic of Nigeria (as amended). The

Constitution also makes provision as to the nature of

remedy that would be readily available to a person whose

rights have been breached under the said chapter.

It is trite law that consideration must be given to the

circumstances in which the Appellant was arrested and

whether he was able to prove same. The Supreme Court in

Jaja v. COP Rivers State (2012) LPELR-20621 (SC),

per Muntaka-Coomassie at Pg. 28-28, Para. F-D said as

follows:

28

(201

9) LP

ELR-47

206(

CA)

“The Appellant’s claim is in connection with the

breach of his fundamental rights to his liberty by the

respondents. The onus is on him to show that he was

unlawfully arrested and detained. i.e. that his

fundamental rights has been violated. If this is

proved, by virtue of the provisions of Section 35(6) of

the Constitution, the complainant is entitled to

compensation and apology, where no specific amount

is claimed. Where a specific amount is claimed, it is

for the Court to consider the claim and in its opinion,

the amount would be justified to compensate the

victim of the breach. In this respect, the common law

principles on the award of damages do not apply to

matters brought under the enforcement of

fundamental rights procedure-the procedure for

fundamental rights was specifically promulgated to

protect the Nigerians’ fundamental rights from abuse

and violations by authorities and persons. When a

breach of the right is proved, the victim is entitled to

compensation even if no specific amount is claimed.”

The argument of the 2nd – 5th Respondents’ Counsel that

the Appellant failed to give sufficient evidence of

29

(201

9) LP

ELR-47

206(

CA)

damages to be awarded cannot be tenable. Paragraph 7 of

the Appellant’s affidavit evidence and Paragraph 5(d) of the

2nd – 5th Respondents’ counter affidavit showed that the

Appellant was arrested from his office and show room on

the allegation that the 1st Respondent’s RAV 4 car was

stolen by him. The Appellant alleged that he was

handcuffed and he exhibited the Photograph that was taken

by his neighbor to the further affidavit. Exhibit AA1 which

is the photograph substantiated the Appellant’s allegation

that he was handcuffed. I see no reason why the Appellant

would lie as to the manner in which he was arrested.

Also, I agree with the learned trial judge on page 106 of the

record when he held as follows:

“To my mind, the 2nd – 5th Respondents were

reckless in the way and manner they conducted their

investigations into the complaint of the 1st

Respondent. It will appear that no investigation was

made on the particulars of the vehicle found at the

Applicant’s car stand before the arrest. I am also of

the view that the 2nd – 4th Respondents were

overzealous in the way and manner they conducted

the

30

(201

9) LP

ELR-47

206(

CA)

arrest and detention of this Applicant thereby causing

the alleged embarrassment in the presence of his

peers and it is my humble view that his (sic) is

condemnable moreso; when no satisfactory reason

have been proffered by the 2nd – 5th Respondents for

their acts.”

As rightfully pointed out by the learned Trial Judge, before

arresting the Appellant, the 2nd – 5th Respondents should

have involved investigators to examine the chassis number

of the disputed car. This is because the police must always

exercise caution before making an arrest. While speaking

on the nature of this right, this Court in Mitin v. COP

Bayelsa State & Ors (2017) LPELR-43064 (CA) at page

15 – 16, Para D-C said as follows:

“The powers of arrest of suspected offenders is vested

in the police and no one can take that away from

them. This general powers invested in the police to

arrest and detain suspected criminals is statutory.

Section 4 of the Police Act Cap 339, LFN, 1990

provides thus:-

The police shall be employed for the prevention and

detection of crime, the apprehension of offenders, the

preservation of law and order, the protection

31

(201

9) LP

ELR-47

206(

CA)

of life and property and the due enforcement of all

laws and regulations with which they are directly

charged

Section 29 of the Police Act specifically empower the

Police to arrest and detain suspected persons whom

the police reasonably suspect to have stolen item in

his possession.

Decisions such as Alamieyeseigha Vs. Igoniwari(2007)

7 NWLR (Pt.) 524; Dokubo Asari Vs. Federal Republic

of Nigeria (2007) 12 NWLR (Pt. 1048) 320, 360; Shola

Abu Vs. COP CHR 18, all go to confirm the powers of

arrest and detention vested in the Police.

However, in the exercise of those powers of arrest and

detention, the Police need to be cautious in their

approach given the provision of Section 35 (1) (c) of

the Constitution of Federal Republic of Nigeria, 1999

(as amended).”

Constitutionally, S. 35(1)(c) allows the Police to make an

arrest on the basis of reasonable suspicion. Also, the Police

is statutorily empowered to make an arrest under the

police act. Specifically, S. 4 of the Police Act provides as

follows:

“The police shall be employed for the prevention and

detection of crime, the apprehension of offenders,

the

32

(201

9) LP

ELR-47

206(

CA)

preservation of law and order, the protection of life

and property and the due enforcement of all laws and

regulations with which they are directly charged, and

shall perform such military duties within or outside

Nigeria as may be required of them by, or under the

authority of this or any other Act.”

The Police is also empowered under Section 24 of the

Police Act to make an arrest on the basis of reasonably

suspect ing that a cr ime has been committed.

Constitutionally, under Section 35(6) of the 1999

Constitution as amended, an infringement on the right of a

person’s personal liberty shall bring about compensation

and public apology from the appropriate authority or

persons. However, while the Police is empowered to act on

the basis of reasonable suspicion, it is not empowered to

detain a person in anticipation that the person has

committed an offence. SeeEkanem v. Assistant Inspector

General of Police Zone 6 (2008) 5 NWLR Part 1079,

Pg. 97 CA.

The power of the Police to arrest and detain any person has

to be exercised within the confines of laid down law.

Usually, a proper investigation has to be carried out before

an arrest can be made. And until there is

33

(201

9) LP

ELR-47

206(

CA)

sufficient evidence to caution and charge a suspect, it is

unlawful to make an arrest. Thus, it is completely wrong for

the Police to arrest a person before getting any evidence to

ground their suspicion that he had committed an offence.

See Fawehinmi v. IGP (2002) LPELR 1258-SC, (2002)

7 NWLR Pt. 767 at 606 SC.

The 2nd – 5th Respondents claimed to have acted on the

basis of reasonable suspicion that the RAV 4 car was

allegedly stolen by the Appellant. It is clear from the

affidavit evidence that the 2nd – 5th Respondents were

reckless in the manner in which the arrest of the Appellant

was made. The chassis number of the vehicle should have

been cross checked before the Appellant was arrested. No

proper investigation was carried out before the arrest.

Since the 2nd – 5th Respondents decided to put the cart

before the horse, the Appellant would be entitled to the

award of damages.

The attached exhibits AA3, AA4, AA5 and AA6 of the further

affidavit revealed the injury that the Appellant suffered to

his reputation as a result of the said arrest. In giving

consideration to the former so as to make an award of

34

(201

9) LP

ELR-47

206(

CA)

damages, the Court in Igweokolo v. Akpoyibo & Ors

(2017) LPELR-41882 (CA) said:

“In assessing the compensation payable to the

Appellant, cognizance should be taken of the pain and

suffering occasioned to the Appellant by deprivation

of his personal liberty in consequence of his detention

as well as the indignity and emotional stress arising

from the said detention. The amount to be awarded as

compensation must reflect the abhorrence of society

and the law for the violation of fundamental rights to

personal liberty since personal liberty is a commodity

of inherently high value. See Odogu v. AG Federation

(1996) LPELR – (2228) 1 at 15-16.

In view of the recklessness of the Police in arresting the

Appellant as a common criminal before they investigated

the report against him, I also agree that the quantum of

damages awarded to assuage his sufferings is too small in

the circumstances. I will not go as far as to award punitive

or exemplary damages, but I will in this case interfere with

the discretion of the learned trial judge to award sufficient

damages. I am of the view that the sum of N1,000,000.00

(One Million Naira only) should ameliorate the suffering

35

(201

9) LP

ELR-47

206(

CA)

and ridicule experienced by the Appellant in this case. I

resolve this issue in favour of the Appellants/Cross

Respondents.

I find no merit at all in the cross appeal and it is hereby

dismissed. The Appeal has merit and it is hereby allowed. I

substitute the award of damages of N1, 000, 000. 00. (One

Million Naira) instead of the award of N300, 000. 00.

(Three Hundred Thousand Naira) to the Appellant. Cross

Appeal Dismissed. Appeal Allowed. Parties to bear their

own costs of the Litigation in this Court.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had

the privilege of reading before now, a copy of the lead

judgment just delivered by my learned brother, HELEN

MORONKEJI OGUNWUMIJU, JCA.

The issues ¡n contention have been adequately addressed

in consonance with applicable laws and authorities and I

agree with the reasoning and conclusion reached therein.

I must add by way of emphasis that it behoves the Courts

as the veritable agency for the protection and preservation

of rule of law to ensure that persons and institutions

operate within the defined ambit of constitutional and

statutory limitations.

36

(201

9) LP

ELR-47

206(

CA)

Where agencies of government are allowed to operate at

large and at their whims and caprices in the guise of

performing their statutory duties, the end result will be

anarchy, licentiousness, authoritarianism and brigandage

leading to the loss of the much cherished and

constitutionally guaranteed freedom and liberty. The

Supreme Court put the issue in proper perspective in the

case of A.G. ADAMAWA STATE & ORS. VS. A.G

FEDERATION (2005) 18 NWLR (PT. 958) 581 wherein

it was held per Ejiwumi JSC that:

“It is in my view manifest that where a party

considered that his constitutional rights have been

breached, that party can quite properly seek the

invocation of the Courts powers to protect the

invasion of such rights. If the constitution is to be

upheld and undoubtedly it must be, then a breach of

it or the likelihood of its being breached must be

capable not only of being vindicated but also of being

prevented.”

In the instant case the invasion of the place of business of

the Appellant/Cross Respondent and his arrest and

detention based on a complaint by the 1st Respondent that

her missing vehicle is similar to the one in the Appellant’s

37

(201

9) LP

ELR-47

206(

CA)

sales depot without any preliminary investigation or inquiry

smacks of reckless abuse of power that should not be

allowed to persist in this country if we are to make

progress, socially, politically and economically.

The Courts should indeed rise up to protect the helpless

and hapless citizenry from wanton abuse of powers by

agencies of government and one of such modes of

deterrence is the award of punitive or exemplary damages

in the event of any such breach of the fundamental right of

any aggrieved person.

In this regard I hold that the appeal has merit and it is

accordingly allowed with N1,000,000.00 exemplary

damages.

I also dismiss the cross-appeal because it has no merit.

I abide by the order as to cost as per the lead judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read

before now the judgment of my learned brother, Helen

Moronkeji Ogunwumiju, JCA., just delivered.

I agree that the appeal has merit and I allow it in the terms

set out in the leading judgment.

38

(201

9) LP

ELR-47

206(

CA)

Appearances:

U.S. Musa, Esq. For Appellant(s)

J . S . O h i a f i , E s q . f o r t h e 2 n d - 5 t hR e s p o n d e n t s / C r o s s A p p e l l a n t s ForRespondent(s)

(201

9) LP

ELR-47

206(

CA)

(2019) lpelr-47206(ca) · 2019. 6. 26. · authority & anor (2010) lpelr-2089(sc) at page 32,...

Documents