HECTARES KONSORTS LTD & ANOR v. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY & ORS (2020)

HECTARES KONSORTS LTD & ANOR v. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY & ORS

(2020)LCN/14458(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/11/2016

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

HECTARES KONSORTS LIMITED 2. ENGINEER LOUIS A OPARAKU APPELANT(S)

And

LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY 2. EXCELLENT MICRO FINANCE BANK LIMITED 3. COMMISSIONER OF POLICE, BENUE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE CORT CAN READ INTO THE AGREEMENT TERMS THAT ARE ALIEN TO ITS EXPRESS TERMS

The Court also cannot read into the agreement terms that are alien to its express terms. The duty of the Court is simply to interpret and give effect to the terms of the agreement as entered into by the parties thereto. These are well established positions of the law as enunciated in a plethora of judicial pronouncements. I will only mention a few. See: Arjay Ltd & Ors v Airline Management Support Ltd (2003) LPELR-555(SC); Hillary Farms Ltd & Ors v M.V. Mahtra & Ors (2007) LPELR-1365(SC); Nika Fishing Co. Ltd v Lavina Corp (2008) LPELR-2035(SC), (2008) 6-7 SC 9PT 11) 20; Dalek Nigeria Ltd v OMPADEC (2007) LPELR-916(SC). PER OTISI, J.C.A.

WHETHER OR NOT A DECISION NOT APPEALED AGAINST IS DEEMED CONCEDED BY THE PARTY AGAINST WHOM IT WAS DECIDED

It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided. It remains valid and binding on all the parties and its correctness cannot be questioned; Anyanwu v. Ogunewe & Ors (2014) LPELR-22184(SC); First Bank of Nigeria Plc v. Ozokwere (2013) LPELR-21897(SC); Buhari & Ors v. Obasanjo & Ors (2003) LPELR-24859(SC). The findings of the lower Court on this issue cannot therefore be questioned on appeal in the absence of a ground of appeal; Anyaduba & Anor V. NRTC Ltd (1992) LPELR-505(SC); Omnia Nigeria Limited v. Dyktrade Limited (2007) LPELR-2641(SC); Onafowokan & Ors v. Wema Bank Plc & Ors (2011) LPELR-2665(SC). PER OTISI, J.C.A.

WHETHER OR NOT WHERE THERE IS A WRONG THERE MUST BE A REMEDY

It was submitted that where there is a wrong there must be a remedy, citing the decisions in Young v. Chevron [Nig.] Ltd [2014] ALL FWLR [PT. 747] 644; Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828, (1986) 17 NSCC (Pt. 11)1257; Yakubu v. Jauroyel (2014) All FWLR (Pt. 734) 20; BFI Group Corporation v. Bureau of Public Enterprises (2013) All FWLR (Pt. 676) 473. PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the High Court of Benue State sitting at Makurdi, Coram T.A. Igoche, J., delivered on May 14, 2015 in which judgment was delivered against the Appellants.

The facts leading to the appeal can be summarized in this manner: The 1st Respondent awarded a contract to the 1st Appellant on 28/11/2008 for the supply of spare parts and repair of 1 No. MF376E Tractor at the sum of N994,497.16. The letter awarding the contract was Exhibit 1, while the contract agreement itself was Exhibit 8.

The 1st Respondent through the 2nd Appellant was offered a loan by the 2nd Respondent for the execution of the contract. The 2nd Respondent thereafter advanced the sum of N500,000 on interest of N50, 000.00 to the 1st Appellant without any loan agreement but with a cheque drawn on his Union Bank account in the sum of N550,000.00 as collateral. The Appellants notified the 1st Respondent that the contract sum should be domiciled with the 2nd Respondent. The 2nd Appellant was however informed that the 1st Respondent preferred to open accounts with either Messrs

Zenith Bank or Bank PHB in disregard to the 2nd Respondent. Upon execution of the contract, the 1st Respondent paid the net sum of N656,000.00 in January, 2009 through Zenith Bank Plc and directed the Appellants to go and collect the said sum of N656,000.00. The Appellants alleged that the sum of N180,000.00 was illegally deducted at source by the 1st Respondent. As a result of the payment through Zenith Bank, the Appellants were unable to access the funds within time to repay the loan from the 2nd Respondent. Nonetheless, the Appellants paid N250, 000.00 to the 2nd Respondent on 17/2/2009.

When the 2nd Respondent realized that the contract sum had been paid through another Bank, they wrote to the 3rd Respondent in March, 2009, alleging that the 2nd Appellant had issued them with a dud cheque, without stating the fact that the Appellants had earlier paid the sum of N250,000 before the said cheque was presented. The 2nd Appellant was consequently arrested by the officers of the 3rd Respondent on 4/3/2009 in the office of the 2nd Respondent. After being detained for about 24 hours, the 2nd Appellant was released and compelled to write an undertaking to pay

the balance. It was further alleged that the 3rd Respondent’s officers insisted the payment of the balance of N300, 000.00 should be paid through the police.

In a bid to recover the said balance of N300, 000.00, two operatives of the 3rd Respondent, Messrs Yusuf and Swende, first went to the residence of the 2nd Appellant on 4/6/2009. Then on 5/6/2009, 4 police officers namely; DSP Nkem Raphael, Mr. Mohammed Yusuf, Mr. David Swende and Mr. Dominic Ochaba, forcibly entered into the 2nd Appellant’s residence, ransacked and took away his handset and that of his wife. In the process they destroyed his car garage door, Courtyard iron gate and door to the living room. Aggrieved by the actions of the respective Respondents, the Appellants instituted the suit leading to this appeal on 4/5/2011, seeking reliefs contained in paragraph 29 of their Statement of Claim, pages 4 – 10 of the Record of Appeal, as follows:
[a] A declaration that the acts of the defendants leading to the forcible entry and destruction of the 2nd plaintiff’s property amounts to breach of his fundamental right to privacy, personal liberty and property guaranteed under the

Constitution of the Federal Republic of Nigeria, 1999 as amended.
[b] SPECIAL DAMAGES IN THE SUM OF N65,000.00.
PARTICULARS OF SPECIAL DAMAGES
As contained in paragraph 26 of the statement of claim.
[c] The sum of N180,000.00 against the 1st defendant being the sum illegally deducted at source.
[d] General damages in the sum of N500 Million for trespass and infringement of plaintiffs’ right to privacy, personal liberty and property.
[e] A perpetual order of injunction restraining the defendants jointly and severally whether by themselves, their servants, agents, and/or privies however described from infringing the fundamental rights as above or continuing to infringing the rights aforesaid.
[f] Any legal and equitable remedies this Court may deem fit to make in the interest of justice.

In proof of their claims, the Appellants called three witnesses, with the 2nd Appellant testifying as PW1. In their defence, DW1 testified for the 1st Respondent; DW2 testified for the 2nd Respondent; while DW3 and DW4 testified for the 3rd Respondent. At the conclusion of hearing, the trial Court gave judgment on 14/5/2015 dismissing

the claims of the Appellants. Dissatisfied with the decision of the trial Court, the Appellants lodged the instant appeal on 11/8/2015 on four grounds of appeal.

Briefs of Argument were filed. The Appellants’ Brief was filed on 26/2/2016. The 1st Respondent’s Brief was filed on 31/3/2016. The 2nd Respondent’s Brief was filed on 2/11/2018. The Record of Appeal transmitted on 25/1/2016, as well as the Briefs of the respective parties were deemed properly filed and served on 6/11/2018. The 3rd Respondent, who was served on 1/3/2016 with the Appellants’ Brief, however, filed no Brief in response.

The 3rd Respondent was served with hearing notice for the appeal through its Counsel, Friday Agwu, Esq., on 19/6/2020 at about 12.12 pm. But at the hearing of the appeal on 23/6/2020, the 3rd Respondent was absent and not represented by Counsel. Being satisfied that the 3rd Respondent had due notice of the appeal, the Court proceeded with the hearing.

A.O. Aruta, Esq., adopted the Appellants’ Brief. He urged the Court to allow the appeal, set aside the judgment of the lower Court and enter judgment in favour of the Appellants

in terms of their Statement of Claim. S.D. Swem, Esq., adopted the 1st Respondent’s Brief and urged the Court to dismiss the appeal and affirm the judgment of the lower Court. The 2nd Respondent’s Brief was adopted by A. A. Chukwuma, Esq., who also urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

From four grounds of appeal, the Appellants distilled four issues for determination of the appeal, as follows:
1. Whether from the available evidence before the lower Court and on record the learned trial judge was right when he held that “the deduction of N180,000.00 by the 1st respondent from the total contract sum due to the appellant was not illegal [This issue is distilled from ground one [1] of the grounds of appeal].
2. Whether or not the trial judge was right when he established a wrong of the 2nd respondent against the appellant but did not provide a remedy for the appellants. [This issue is distilled from ground Three [3] of the grounds of appeal].
3. Whether the trial Court was right when he dismissed relief 29 [a] for being vague and the case of the appellant in its entirety. [This

issue is distilled from ground Two [2] of the grounds of appeal].
4. Whether or not the appellants proved their case to be entitled to the judgment of the lower Court. [This issue is distilled from ground Four [4] of the grounds of appeal].
For the 1st Respondent, the issues were framed thus:
a) Whether from the available evidence before the lower Court and on record, the learned trial judge was right when he held that the deduction of N180,000.00 by the 1st Respondent from the total contract sum due to the 1st Appellant, was not illegal (Ground 1 of the Grounds of Appeal).
b) Whether or not the learned trial Judge was right in dismissing the case of the Appellants against the Respondents before the Lower Court (Grounds 2, 3, and 4 of the Grounds of Appeal).
The 2nd Respondent distilled the following Issues:
1. Whether or not the learned trial Judge was right when he established a wrong of the 2nd respondent against the appellants but did not consider it in the interest of justice in the circumstances of the case to grant a remedy, tied to grounds 2 & 3.
2. Whether the trial Judge was right in dismissing the claim of the

appellants in its entirety, tied to ground 4.

I shall adopt the issues as framed by the Appellants, which comprehensively cover the matters in controversy in this appeal.

Issue 1
The Appellants argue that the clear wordings of the terms of the contract between the 1st Appellant and the 1st Respondent indicate that the 1st Respondent shall pay the 1st Appellant a total sum of N994,497.16. There was nothing stated to suggest that the 1st Respondent would deduct any sum from the contract sum. The Court was urged to hold that the deduction of N180,000.00 of the total contract sum was contrary to the agreement of parties and same should be refunded forth with. The role of the Court is to interpret and enforce the terms of contract between parties. The Court cannot enforce or interpret terms that are speculative and not certain, relying on Intercontinental Bank Ltd v Brifina Ltd [2012] ALL FWLR [PT.639] 1206, Kayode Vent. Ltd v Ministry of FCT [2010] 7 SCM 120. Parties are bound by the conditions and terms in a contract they freely enter into. It is not the function of the Court of law either to make agreements for the parties or to change their

agreements as made, citing Dragetanos Construction [Nig.] Limited v Fab Madis Ventures Limited and 1 Other [2012] ALL FWLR [PT.616] 482-483. The contract was in documentary form which does not admit of oral evidence to contradict and or alter it in any form. Exhibit 8 was relied on. Section 132 [1] of the Evidence Act, 2004 as explained by the Supreme Court in First Bank of Nigeria Plc v. Imasuen [2014] ALL FWLR [PT. 725] 339 at 363 was cited and relied on. The Court was urged to hold that from the available evidence before the trial Court and on record the learned trial Judge was wrong when he held that the deduction of N180,000.00 by the 1st respondent from the total contract sum due to the appellant was not illegal and resolve this issue in favour of the Appellants.

For the 1st Respondent, it was submitted that the learned trial Judge was right in holding that the deduction of the sum of N180, 000.00 by the 1st Respondent from the total contract sum due to the Appellant was not illegal. Counsel also submitted that the main duty of the Court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document,

citing Oduye v Nigerian Airways Ltd (1988) 2 NWLR (pt. 55) 126. It was submitted that the contract between the 1st Appellant and the 1st Respondent was regulated by Exhibit 1, which was the letter of award of contract and Exhibit 8, which was the Contract agreement. It was submitted that even though the total sum of the contract awarded to the 1st Appellant by the 1st Respondent as per Exhibit 1 was N994,497.16, it was the clear intention of the parties to the agreement that the 1st Respondent should deduct the sum of N180,000.00 from the contract sum as inspection and management fees.

The Court was referred to Clause 12 (v) of Exhibit 8; Clause 3 of Exhibit 8, and the bill of quantities attached to Exhibit 8. 1st Respondent’s Counsel submitted that by the combined effect of Clauses 9, 10, 15 and 16 of Exhibit 8, it was the 1st Respondent who was to handle inspection of parts and general management of the project. Furthermore, P. W. 1, the 2nd Appellant, confirmed under cross-examination that inspection and project management under the contract was to be done by the 1st Respondent. He also stated that a staff of the 1st Respondent was on ground

and gave him a certificate of completion, as contemplated by Clause 9 of Exhibit 8. Counsel posited that it was after careful consideration of Exhibits 1 and 8 as well as Exhibit 9 and the oral evidence of P. W. 2 and D. W. 1 that the learned trial Judge came to the conclusion that the sum of Nl80, 000.00 deducted by the 1st Respondent under the contract sum as project management fund (PMF) was not illegal but in line with the agreement of parties to the contract. It was submitted that since the finding of the lower Court on the sum of N180,000.00 deducted by the 1st Respondent from the contract sum payable to the 1st Appellant was based on the evidence placed before the Court, the said finding was proper and ought not to be disturbed. An Appellate Court will not interfere with the judgment or finding of fact of a trial Court except where it is apparent that there is a miscarriage of justice or that the finding of fact is unsupported by credible evidence, or that the judgment or finding is perverse, citing Iniama v Akpabio (2008) 17 NWLR (PT. 1116) 225 at 348.

The Court was urged to hold that the finding of the lower Court on the sum of N180, 000.00

deducted by the 1st Respondent was not perverse. The 1st Appellant who freely signed Exhibit 8, is bound by the terms of the agreement and cannot seek for better terms or a variation of the terms already agreed on. Parties to an agreement are bound by the terms of the agreement they freely enter into, relying on A. G. Ferrero & Co. Ltd v. H. C. N. L. (2011) ALL FWLR (PT. 587) 647 at 659 – 660; Idoniboye Obu v. NNPC (2003) FWLR (PT. 146) 959 at 1007. The duty of the Court is not to make or rewrite agreements for parties but to construe and enforce agreements already entered into by parties, citing Baliol (Nig) Ltd v. Navcon (Nig) Ltd (2010) ALL FWLR (pt. 532) 1672 at 1683. The Court was urged to resolve the issue in favour the 1st Respondent and against the Appellants.

Resolution
The Appellants’ Counsel and the 1st Respondent’s Counsel have both rightly submitted that parties are bound by the express terms of an agreement they have freely entered into, and, that the Court cannot in any way vary or add to the terms of such agreement. The Court also cannot read into the agreement terms that are alien to its express terms. The duty

of the Court is simply to interpret and give effect to the terms of the agreement as entered into by the parties thereto. These are well established positions of the law as enunciated in a plethora of judicial pronouncements. I will only mention a few. See: Arjay Ltd & Ors v Airline Management Support Ltd (2003) LPELR-555(SC); Hillary Farms Ltd & Ors v M.V. Mahtra & Ors (2007) LPELR-1365(SC); Nika Fishing Co. Ltd v Lavina Corp (2008) LPELR-2035(SC), (2008) 6-7 SC 9PT 11) 20; Dalek Nigeria Ltd v OMPADEC (2007) LPELR-916(SC).

The evidence herein was that the 1st Appellant and the 1st Respondent entered in the agreement for the supply of spare parts and repair of 1 No. MF376E Tractor at the sum of N994, 497. 16. Exhibit 1 was the letter awarding the contract while Exhibit 8 was the contract agreement. Clause 3 of Exhibit 8 stated:
‘DOCUMENTS OF THE AGREEMENT
For the avoidance of doubt, it is hereby agreed that all documents which include but are limited to the drawings, designs, descriptions, specifications, orders and bill of quantities or schedules that are annexed or attached to this agreement, are deemed to and shall form

part of this agreement in all respects and for the purpose of ascertaining the satisfactory completion of works required. The parties hereto hereby agree to and adopt the appendices attached to this agreement, that same shall form part of the agreement.’
Paragraph 12 (iii) and (v) provided:
iii) The outstanding balance shall become due and payable upon the satisfactory performance of the contract or aspects thereof, having regards to the specifications/bill of quantities, but subject always to clause 16 of this agreement.
v) Notwithstanding the total contract sum, payment shall be specifically based on the actual value of works performed and the quantity of items having regards to the bill of quantities. (Emphasis mine)
Clause 16 provided for Measurement/Inspection thus:
(i) Before any payment is to be made to the contractor after the payment of mobilization fees or advance payment (where applicable), measurement shall be made of all works reported to have been executed or all portions of the contract purported to have been perform always bearing to mind the specification of items at the unit or lump sum prices provided in

the bill of quantities.
(ii) The measurement shall be carried out by the Authority or its representative designated to supervise the contract, or such other person as the Authority may deem fit to direct or engage for the purpose of the measurement or ascertainment of the actual work performed and value thereof. The Authority or its designated representative(s) shall have the right to enter and inspect all aspect or stages of the performance of this contract and shall render a report to the Authority accordingly.” (Emphasis mine)

Annexed to Exhibit 8 is the Bill of Quantities, which provided under Items 6 and 7 of Repair Cost:
‘Inspection of items/parts before supply is made – N100,000.00
Project management – N80,000 00’
Exhibit 9, which was the payment voucher dated 23/12/2008, gave the following details:
Contract sum – N994,497.15
Value of work – N994,497.15
Less contingency – N70,039.50
Less 5% vat – N44,021.79
Less 5% WHT – N44,021.79
N836,414.07
Less PMF N180,000.00
N659,414.07

Now, under cross-examination, PW1, the 2nd Appellant, made the following admissions, page

390 of the Record of Appeal:
“I see Exhibit 8, particularly, paragraph 3 therein. I agree that the schedules form part of the agreement. On the last page is a table titled REPAIR cost and item 6 therein is for N100,000.00 while item 7 is for N80,000.00. I have done contracts before. The inspection was to be carried out by the agent of the 1st defendant, but nobody came for inspection. A staff of 1st defendant was however on ground and he gave me a certificate of completion. The inspection and project management are done by the client.” (Emphasis mine)

In other words, the Appellants admitted that the agreement between the 1st Appellant and the 1st Respondent made provision for the deduction of a total of N180, 000.00 from the contract sum. This is in the nature of an admission against interest and it stands firmly against the Appellants; Kamalu & Ors v. Umunna & Ors (1997) LPELR-1657(SC); Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC). Having admitted that provisions for the deductions in issue were made in Exhibit 8, which terms governed the agreement between the 1st Appellant and the 1st Respondent, it is clear that

the said deduction of N180, 000.00 was not illegal. The trial Judge therefore rightly gave effect to the terms of Exhibits 1 and 8, which was also corroborated by Exhibit 9.

In resolving this Issue against the Appellants, the learned trial Judge concluded page 482 of the Record of Appeal:
“The law is that the Court cannot rewrite the contract for the parties to it.”

This is the correct position of the law. I see no reason to disturb the conclusion of the learned trial Judge on this issue. The Appellants were aware and admitted that the terms of the contract with the 1st Respondent permitted the deductions in issue. Issue 1 is thus resolved against the Appellants and in favour of the 1st Respondent.

Issue 2
The lower Court held that the 2nd Respondent reported the matter to the 3rd Respondent with the aim of using the police to recover the loan. The lower Court established that the report of the 2nd Respondent was actuated by malice and that the said report of the 2nd Respondent, spurred the 3rd Respondent into violation of the 2nd Appellant’s rights. Although the learned Judge established wrongdoing by the 2nd Respondent

and found it culpable, the Appellants were awarded no remedy. It was submitted that where there is a wrong there must be a remedy, citing the decisions in Young v. Chevron [Nig.] Ltd [2014] ALL FWLR [PT. 747] 644; Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828, (1986) 17 NSCC (Pt. 11)1257; Yakubu v. Jauroyel (2014) All FWLR (Pt. 734) 20; BFI Group Corporation v. Bureau of Public Enterprises (2013) All FWLR (Pt. 676) 473.

Counsel for the Appellants submitted that the Appellants have suffered a miscarriage of justice by decision of the trial Court in declining to provide a remedy to the Appellants. The Court was urged to resolve this issue in favour of the Appellants and provide a remedy to them.

For the 2nd Respondent, it was argued that the claim of the Appellants against the 2nd Respondent was centred on alleged violation of the 2nd Appellant’s fundamental rights, namely: rights to Personal liberty, privacy and property which was caused by the 2nd Respondent’s act of reporting a case of issuance of dud cheque to the 3rd Respondent. Any person who alleges the breach of his or her fundamental right has the duty to establish the

breach; citing Fajemirokun v. Commercial Bank of Nig Ltd. (2009) All NWLR (Pt. 487) 3-4. The trial Court found that the Appellants did not prove violation of the 2nd Appellant’s rights.

The 2nd Respondent reported to the 3rd Respondent that the 2nd Appellant issued a cheque in settlement of an obligation arising from a loan contract which on presentation was dishonoured. The act of issuing a dud cheque is a criminal act punishable with a term of imprisonment without an option of fine, citing Sections 1(1) and 2(b) of the Dishonoured Cheques (Offences) Act Law of the Federation of Nigeria 2004; Ikedigwe v. FRN (2011) All FWLR (Pt. 598) 845. The 2nd Appellant had issued a cheque that was dishonoured when presented for payment. It was submitted that from the moment that cheque was dishonoured, the drawer of that cheque was reasonably suspected of having committed the act criminalised by the law. Every citizen of this country is under a civic duty to report an alleged commission of crime to law enforcement agencies for investigation and any other possible legal action, still citing Fajemirokun v. Commercial Bank Ltd (supra). It was argued that this duty was

performed by the 2nd Respondent by reporting the issuance of a dud cheque.

The Appellants asserted that they had paid part of the value of the cheque by the time the case of issuance of dud cheque was reported. It was submitted that the Appellants’ claim did not help the case of the Appellants. The important point was that the cheque was presented for payment and dishonoured. The Court was urged to hold that in the circumstances the 2nd Respondent was justified in reporting the Appellants to the police.

Resolution
The trial Court found the following facts to have been established, page 479 of the Record of Appeal:
2. That the plaintiffs obtained a loan of N500,000.00 from the 2nd defendant in order to execute the contract and issued a post dated cheque for the sum of N550,000.00 dated 20/12/2008, now Exhibit ‘10’ before the Court.
3. That the cheque was dishonoured as it was marked ‘DAR’ on presentation the request for the loan is before the Court as Exhibit ‘11’.
8. That the plaintiffs paid part of the loan to the 2nd defendant on 17/2/2009 and promised to pay the balance in March, 2009.

That in early March 2009, the 2nd defendant reported the plaintiffs to the 3rd defendant for issuance of dud cheque, for which the 2nd plaintiff was visited by the officer of the 3rd defendant for his arrest; in June 2009.
10. That the plaintiffs liquidated the loan in two or more installments of N280, 000.00 on 1/4/2009 and N20,000.00 on 5/5/2009.”
These findings, which were not appealed against.

In his witness statement, DW2, one Chigbo Okoli, Manager of the 2nd Respondent, stated in paragraph 3(e):
That the 1st plaintiff did not repay the loan as mutually agreed upon until 17th February, 2009 when she made part payment of N250,000.00 and on 1st and 5th of April 2009 when he paid N280,000.00 and N20,000.00 respectively to the 2nd defendant.
DW2 further stated, paragraphs 3(f) and (g):
(f) That the 2nd defendant had earlier (before any of the payments referred to above) presented the post-dated cheque issued by the 1st plaintiff for payment but same was returned unpaid.
(g) That the 2nd defendant had also reported the issuance of the dud cheque by the 1st plaintiff to the police before any of the

payments referred to above was made.

I think it is relevant to note that from the testimony of DW2, as at 4/3/2009, when the 2nd Appellant said he was arrested by the officers of the 3rd Respondent, he had already paid N250,000.00, which was almost half of the sum represented in the said cheque. Further, as at 5/5/2009, from the evidence of DW2, the plaintiffs already liquidated the loan and interest of N550,000.00. Stretching it further, it means that by June, 2009 when the officer of the 3rd Respondent visited the 2nd Appellant, still following the report of the 2nd Respondent, the value of the cheque, Exhibit 10, had been overtaken or even reduced by more half of its initial tenor. Notwithstanding these undisputed facts, the 2nd Respondent went ahead to activate a report to the 3rd Respondent against the Appellants.
The learned trial Judge made the following findings, pages 482 – 483
“It is also not in doubt that the cheque was dishonoured as there is marked on it the note “DAR” meaning “Drawer’s attention required”. It is the contention of the 2nd defendant that at the time the plaintiffs made

part payment of N250,000.00 on 17/2/09 the offence of issuing dud cheque had already been committed by them. That is true because the cheque is dated 20/12/08 and it was not honoured on that day. But the question that calls for an answer is why the report to the 3rd defendant of the commission of the crime only in March 2009 when the plaintiffs have made efforts at liquidating the loan by the payment of N250,000.00 which was accepted by the 2nd defendant. It is in evidence that 2nd defendant made the report after hearing that the contract sum was paid into another Bank. This is what DW 2 said under cross examination;
“It was when we learnt that he had collected the money through another Bank contrary to the domiciliation that he did with us that I insisted he should come to the Bank for a meeting and he refused.”
According to the witness, that was between December 2008 and early 2009 and when part payment was made in February 2009, the 2nd defendant still went on to report the crime of issuance of dud cheque to the 3rd defendant. The most disturbing aspect of this report is the failure of the 2nd defendant to disclose to the 3rd

defendant that part payment had been made.”

The learned trial Judge made these further findings, page 485 of the Record of Appeal:
“On the facts leading to the report to the police, this is what DW2 and under cross examination;
“The DAR written on top means, Drawers attention required”. The plaintiff was contracted on phone to draw his attention to the cheque. I was the one that called him. The first time I called him he said he said he had not been paid the contract money. We had no problem with that. It was when we learnt that he had been paid and he collected the money through another bank contrary to the domiciliation that he did with us that I insisted he should come to the Bank for a meeting and he refused. This must have been between December 2008 and early 2009. We laid a verbal complaint to the police and we were asked to put it in writing which we did I cannot remember the exact date of the report.”
It is clear from the above that the 2nd defendant reported the matter to the police with the aim of using the police to recover the loan and not for the crime of issuing dud cheque. It is in evidence that

part payment of N250,000.00 was made in February 2009, so I do not believe the DW 2 when he said that the 2nd plaintiff refused to see them in the Bank when his attention was drawn to the cheque with the 2nd plaintiff’s response to the drawing of his attention to the cheque by payment of part of the loan, I do not see the existence of a probable cause necessitating the report of the matter to the police in March 2009. I therefore hold that the report was actuated by malice and that it was intended to make the 3rd defendant to recover the balance of the loan from the plaintiffs I hereby resolve issue No. 2 in favour of the plaintiffs and hold that the 2nd defendant had no reason to suspect the plaintiffs of having committed an offence requiring investigation by the 3rd defendant at the time of making the report because the 2nd plaintiff had been in touch with her and had promised to pay the balance of the loan in March, 2009.” (Emphasis mine)

The 2nd Respondent did not appeal against the findings of the learned trial Judge. It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been

conceded by the party against whom it was decided. It remains valid and binding on all the parties and its correctness cannot be questioned; Anyanwu v. Ogunewe & Ors (2014) LPELR-22184(SC); First Bank of Nigeria Plc v. Ozokwere (2013) LPELR-21897(SC); Buhari & Ors v. Obasanjo & Ors (2003) LPELR-24859(SC). The findings of the lower Court on this issue cannot therefore be questioned on appeal in the absence of a ground of appeal; Anyaduba & Anor V. NRTC Ltd (1992) LPELR-505(SC); Omnia Nigeria Limited v. Dyktrade Limited (2007) LPELR-2641(SC); Onafowokan & Ors v. Wema Bank Plc & Ors (2011) LPELR-2665(SC). The submissions of Counsel for the 2nd Respondent on this issue are therefore non sequitur.

It must be emphasized that upon payment of N250, 000.00 by the 1st Appellant on 17/2/2009, the value of the cheque, Exhibit 10, had become overtaken. The 2nd Respondent was no longer owed N550,000.00 represented in the said cheque. A report to the 3rd Respondent made after 17/2/2009 ought to have given the true position. I note that Exhibit 10, the cheque in issue, does not have any date indicating precisely when it was presented for payment

and dishonoured. Nevertheless, it must also be noted that although the cheque may have been dishonoured on the due date, 20/12/2008, the 2nd Respondent did not report the criminal act to the 3rd Respondent. Rather, the 2nd Respondent received part of the money represented by the cheque, thereby altering the true picture of the debt before reporting to the 3rd Respondent in March, 2009.

The 2nd Appellant testified that he was arrested by the officers of the 3rd Respondent on 4/3/2009 in the office of the Managing Director of the 2nd Respondent and only released 24 hours later after he was compelled to make some statements in writing, undertaking to pay the balance of N300, 000.00. The 2nd Respondent did not deny this piece of evidence. This means that the 2nd Appellant was arrested on 4/3/2009, after substantial payment of the loan had been made. The finding of the trial Court that the 2nd Respondent was actuated by malice in making the belated report to the 3rd Respondent in March 2009 after receiving a substantial part of the money is unassailable and stands firm.

The 2nd Appellant was visited again in his home by officers of the 3rd Respondent on

4/6/2009 on account of the same report by the 2nd Respondent. By this time, the Appellants had already liquidated the entire sum owed to the 2nd Respondent, from the evidence of PW1 and DW2. The same 2nd Respondent that unleashed the 3rd Respondent against the 2nd Appellant by their report, failed to notify the 3rd Respondent that full payment had been made.

A cause of action arises under Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, when a person alleges that any of the fundamental rights constitutionally provided for and to which he is entitled, has been, is being, or is likely to be infringed; Order 11 Fundamental Rights (Enforcement Procedure) Rules, 2009. If the Court finds that his fundamental rights have been infringed or is being infringed or is likely to be infringed, he is entitled to redress; Diamond Bank v. Opara & Ors (2018) LPELR-43907(SC). It is noteworthy that the lower Court made an order of injunction restraining the Respondents jointly and severally from infringing the fundamental rights of the 2nd Appellant.
The 2nd Appellant was entitled to his right to personal liberty guaranteed by

Section 35(1) of the Constitution, which was infringed upon by the 3rd Respondent, maliciously activated by the 2nd Respondent. He was thereby entitled to redress. I therefore award to the 2nd Appellant the sum of N500, 000.00 against the 2nd Respondent. Issue 2 is thus resolved in favour of the Appellants and against the 2nd Respondent.

Issues 3 and 4
The Appellants’ Counsel argued Issues 3 and 4 together. Learned Counsel for the Appellants urged the Court to hold that by the provisions of Section 37 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the privacy of every Nigerian citizen, the home, correspondence, telephone and other telegraphic communications are guaranteed and protected, citing Federal Republic of Nigeria v. Joseph Daniel [2012] ALL FWLR [PT. 627] 703. The Fundamental right to personal liberty and ownership of immovable property is also enshrined in Sections 35 and 43 of the Constitution of the Federal Republic of Nigeria.

The Appellants herein sued the Respondents for the breach of 2nd Appellant’s fundamental Rights. Counsel for the Appellants rehashed the evidence adduced by the Appellants.

The Court was invited to note that instead of paying the contract sum to the 2nd Respondent as directed by the Appellants to enable the 2nd Respondent deduct the loan granted to the Appellants for the execution of the contract, the 1st Respondent chose to pay through Zenith Bank where the Appellants had no account. The Appellants had to open a new account with Zenith Bank which delayed the payment to the 2nd Respondent within the time stipulated by the 2nd Respondent. DW1 admitted in cross examination that although they received two letters of domiciliation of payment into accounts in Union Bank and then to the 2nd Respondent, the 1st Respondent made payment through Zenith Bank. As also admitted by DW2 under cross examination,
“…it was when we learnt that he had been paid and he collected the money through another Bank contrary to the domiciliation that he did with us that I insisted he shall come to the bank for a meeting…”

It was submitted that the payment of the contract sum through another Bank contrary to instructions of the Appellants triggered the anger of the 2nd Respondent into reporting the 2nd Appellant to the 3rd

Respondent which, in turn, led to the breach of the 2nd Appellant’s fundamental rights complained of. It was argued that if the 1st Respondent had kept to the terms of their contract, they would have paid the contract sum through the 2nd Respondent to enable them deduct the loan.

The 2nd Respondent requested that a cheque, Exhibit 10, be given to them as a collateral for the loan, which the 2nd Appellant did. On 17/2/2009, the Appellants paid N250,000.00 to the 2nd Respondent in partial liquidation of her loan and assured the 2nd Respondent that the outstanding balance of N300,000.00 would be paid in March, 2009 without any objection. But early in March, 2009, the 2nd Respondent wrote to the 3rd Respondent alleging that the cheque the 2nd Appellant issued was a dud one, without stating the fact that the Appellants had paid the sum of N250,000 out of the total sum contained in the cheque. It was submitted that the 2nd Respondent misled the 3rd Respondent to go after the 2nd Appellant. The 2nd Respondent further failed to inform the 3rd Respondent when the 2nd Appellant completed the repayment of loan on 1/4/2009 and 5/5/2009 respectively before the 3rd

Respondent’s agents went to the 2nd Appellant’s house on 5/6/2009. It was submitted that the acts of the 2nd Respondent had set in motion wrong machinery which led the 3rd Respondent to act in breach of the fundamental rights of the 2nd Appellant. It is argued that the 2nd Respondent who set in motion a wrong machinery which led the 3rd Respondent to act in breach of the fundamental rights of the 2nd Appellant to privacy, Personal liberty and ownership of immovable property must be held liable for that breach as if it had done the act itself. The decisions in Anambra State Environmental Sanitation Authority v Ekwenem [2001] FWLR [PT.51] 2034 at 2053; Bassey v. Afia [2010] ALL FWLR [PT. 531] 1500 were cited and relied on.

It was the evidence of the Appellants that Cpl Mohammed Yusuf and Sgt Daniel Swende arrested 2nd Appellant in the office of the Managing Director of 2nd Respondent on 4/3/2009 and detained the 2nd Appellant for about 24 hours in the same cell designated for hardened criminals. He was released on bail on 5/3/2009 and compelled to write a statement, notwithstanding the fact that the plaintiff produced the evidence of part payment of

N250,000 out of the N550,000.00 on 17/2/2009. It was the further evidence of the Appellants that the then O/C Legal informed the 2nd Appellant that he should pay the balance of N300, 000.00 through the 3rd Respondent’s office. The Appellant later paid the balance to the 2nd Respondent. When the 3rd Respondent’s officers went to collect the balance of N300,000.00 which they asked 2nd Appellant to bring to their office, the 2nd Appellant showed them a Bank teller of 5/5/2009 evidencing payment to the Bank, the officers became infuriated that the 2nd Appellant did not obey their instruction and decided to revoke his bail of March, 2009.

It was his further evidence that on 5/6/2009, 4 police officers namely; DSP Nkem Raphael, Mr. Mohammed Yusuf, Mr. David Swende and Mr. Dominic Ochaba forced themselves into the 2nd Appellant’s residence, ransacked and took away his handset and that of his wife. In the process they destroyed the following items:
[a] Car garage door.
[b] Courtyard iron gate.
[c] Door to living room.

By the provisions of Section 33 of the Police Act [2004] CAP P19, the police have power to receive complaint and

investigate the commission of any offence. But a civil arrangement is not a matter for the police. The police force is not a debt collecting organization, citing Arab Contractors Nigeria Limited v Umanah [2013] ALL FWLR [PT.683] 1990, Igwe v Ezeanochie[2010] 7 NWLR [PT.1192] 61. The Court was urged to hold that the transaction between the Appellants and the 2nd Respondent was purely civil transaction, which was not the business of the police.

The Court was urged to note that none of the Appellants’ witnesses were cross examined by the 3rd Respondent. By this failure, would deem such evidence as accepted or undisputed, citing Oyebode v Awe [2012] ALL FWLR [ PT 645] 358 at 379. Where evidence in support of the party’s case remains unchallenged, a Court can safely rely on it and act on same as proof of facts before the Court, relying on Adekola v Ailara [2011] ALL FWLR [PT. 572] 1730; Nacenn [Nig] Ltd v. Bewac Automative Producers Limited [2011] ALL FWLR [PT.585] 292. The Court was urged to hold that the case of the Appellants was unchallenged before the trial Court therefore the trial Court ought to have acted on the piece of evidences in entering

judgment for the Appellants.

The Court was urged to discountenance the evidence of DW3 and DW4 which were contradictory and therefore unreliable. The Court cannot pick and choose from these pieces of evidences, relying on Osadim v Tawo [2010] ALL FWLR [PT. 534] 165.

Counsel for the Appellants submitted that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a Court of trial. Where a Court of trial properly evaluates the evidence and justifiably assesses the facts, an Appellate Court, upon proper complaint, can only find out whether there was evidence on record on which the trial Court could have acted. It was argued that an Appellate Court cannot reject the finding of a trial Court on evidence of witnesses unless such findings of the trial Court were perverse. Where the findings of the trial Court were perverse, the Appellate Court can set aside such decision, relying onOlowu v Amayo [2012] [PT. 639] 1116; Amadu v Yantumaki [2012] ALL FWLR [PT.626] 521. Counsel posited that the findings of the trial Court were perverse owing to the fact that it was not made upon any credible and admissible

evidence on record in defence of the case of the Appellant before the lower Court. From the unchallenged evidence adduced, it was argued that the trial Court was in error to have dismissed Relief 29 [a] of the Appellants for being vague. The Court was urged to hold that the Appellants proved their case before the lower Court.

Counsel for the 1st Respondent relied on the evidence adduced before the lower Court to submit that the learned trial Judge was right in dismissing the case of the Appellants against the Respondents. The standard of proof in civil cases is on a balance of probability. Before the Court would come to a decision as to which evidence to accept and which evidence to reject, it should first weigh the evidence of both parties on each side of an imaginary scale to see which is heavier by the quality or the probative value of the testimony of their witnesses, citing Idi v Yau (2009) 10 NWLR (Pt. 722) 640 at 654-655. It was posited that the learned trial Judge duly considered and evaluated the evidence of the Appellants and 3rd Respondent on the issue of damage to 2nd Appellant’s property and came to the conclusion that the evidence of the

3rd Respondent was more probable, and same was accepted while the Appellants’ contention was rejected. The Court also found that the 2nd Appellant was not able to prove that he was arrested by agents of the 3rd Respondent. That the trial Judge had duly evaluated the evidence of the parties on the issue of the violation of the 2nd Appellant’s fundamental rights to privacy, personal liberty and property. The evidence of the two sides were placed side by side and considered before the Court came to its conclusion and the reasons for such conclusions were also given. It was contended that the finding of the trial Court on the alleged infringement of the 2nd Appellant’s fundamental rights was based on evidence on record and same ought not to be faulted by this Court, citingAgbaje v Fashola (2008) 6 NWLR (Pt. 1082) 90 at 153.

It was further submitted, assuming without conceding that the lower Court was wrong in its finding regarding relief 29 (a, b and d) of the Appellants’ statement of claim, the 1st Respondent cannot be held liable for the acts of the agents of the 3rd Respondent because she did not either directly or indirectly involve

the agents of the 3rd Respondent in the transaction between her and the Appellants.

For the 2nd Respondent, it was argued that the law is settled that when a citizen who reasonably suspects a person of having committed an offence lays a report of same to the police, whatever the police does with the report lies entirely with the police, except where there is evidence that apart from laying the report, the citizen took any other action to instigate the police or acted by malice. Reliance was placed on Abdulhamid v. Akar (2006) All FWLR (Pt. 321) 1193. It was argued that the Appellants failed to show by any evidence that the 2nd Respondent did more than reporting the case of issuance of the dud cheque to the police or that same was actuated by malice. The 2nd Respondent was not liable for whatever the police did with the report or how the 3rd Respondent went about his duty of investigating the report. The Court was urged to dismiss the appeal.

Resolution
In paragraph 29(a) of the Statement of Claim of the Appellants, they sought the following relief:
A declaration that the acts of the defendants leading to the forcible entry and destruction

of the 2nd plaintiffs property amounts to a breach of his fundamental right to privacy, personal liberty and property guaranteed under the Constitution of the Federal Republic of Nigeria 1999.

The learned trial Judge described these reliefs as vague but said, page 486 of the Record of Appeal:
“It is the acts of the 3rd defendant that should have constituted a breach of the rights stated but that is not the relief sought in paragraph 29(a). That relief therefore fails and it is accordingly dismissed.”

I must confess I do not quite follow the reasoning of the learned trial Judge. I shall examine this conclusion in the light of both the of evidence adduced before the trial Court and the findings made by the trial Court thereon.
The trial Court found, page 490 of the Record of Appeal:
“…the 1st defendant failed to pay the contract sum to the 2nd defendant as instructed by the plaintiffs in Exhibit 3.”

The trial Court further found, page 491 thereof:
“It is this failure that led to the non-fulfillment of the agreement between the plaintiffs and the 2nd defendant to repay the loan with the contract money.”

Exhibit 3 was a notification to the 1st Respondent by the Appellants stating that payments in respect of the contract should be domiciled with the 2nd Respondent. This demand by the Appellants was not complied with by the 1st Respondent. The failure to comply with this demand activated and spiraled in to the reaction by the 2nd Respondent leading finally to the events in issue herein.

Now, there was no evidence that the agreement between the 1st Respondent and the 1st Appellant included the terms of Exhibit 3. Neither was there evidence that the 1st Respondent was in the loop of the loan granted to the Appellants by the 2nd Respondent and its peculiar terms. Rather, Exhibit 3 can be viewed in the context of a request made by the 1st Appellant to the effect that the contract sum to be paid to them by the 1st Respondent should be domiciled with the 2nd Respondent. The fact that the 1st Respondent failed to accede to this request, in my view, does not render them liable for the actions of the 2nd and 3rd Respondents.

I have already in resolving Issue 2 emphasized that the findings of the trial Court on the failings of the 2nd

Respondent were not appealed. For further emphasis, the trial Court found, page 485 of the Record of Appeal:
“It is clear from the above that the 2nd defendant reported the matter to the police with the aim of using the police to recover the loan and not for the crime of issuing dud cheque. It is in evidence that part payment of N250,000.00 was made in February 2009, so I do not believe the DW2 when he said that the 2nd plaintiff refused to see them in the Bank when his attention was drawn to the cheque with the 2nd plaintiff’s response to the drawing of his attention to the cheque by payment of part of the loan, I do not see the existence of a probable cause necessitating the report of the matter to the police in March 2009. I therefore hold that the report was actuated by malice and that it was intended to make the 3rd defendant to recover the balance of the loan from the plaintiffs I hereby resolve issue No 2 in favour of the plaintiffs and hold that the 2nd defendant had no reason to suspect the plaintiffs of having committed an offence requiring investigation by the 3rd defendant at the time of making the report because the 2nd plaintiff

had been in touch with her and had promised to pay the balance of the loan in March, 2009.”
This finding, which was not appealed against, cannot be looked into by this Court. It stands firm. The submissions of Counsel for the 2nd Respondent on this point therefore go to no issue. The liability of the 2nd Respondent has already been considered under Issue 2 and determined. The determination need not be repeated hereunder.

The 3rd Respondent was involved in this matter by the report of the 2nd Respondent, which the trial Court found was activated by malice and made in a bid to use the 3rd Respondent to recover the outstanding portion of the loan granted to the 1st Appellant. The initial report was made by the 2nd Respondent in March 2009, after the Appellants had repaid a substantial portion of the value of the dishonoured cheque. This said report led to the arrest of the 2nd Appellant in the office of the Managing Director of the 2nd Respondent. I note that this evidence was not at all challenged under cross-examination. It was not categorically denied by the 2nd Respondent which testified through DW1, and also not denied by DW3 and DW4, who

testified for the 3rd Respondent. The 2nd Appellant was therefore wrongfully arrested and detained for about 24 hours from 4/3/2009 – 5/3/2009.

The 2nd Appellant testified that officers of the 3rd Respondent met with him on 4/6/2009, when the Appellants were no longer owing any money to the 2nd Respondent, to demand for the balance of the 2nd Respondent’s loan of N300, 000.00. Upon being showed payment tellers of the balance by the 2nd Appellant, they became upset and informed him that his bail was revoked and that he should report to their office the next day. On 5/6/2009, the named officers of the 3rd Respondent forced their way into his home and left a wake of destruction. The 2nd Respondent unfortunately had failed to notify the 3rd Respondent that payment had been made so as to rein in the unleashed officers who were still bent on recovering money, perhaps now for other purposes!

From the evidence adduced, PW1 did not witness the destruction of his car garage door, Courtyard iron gate and door to his living room. But PW3 who witnessed the event stated in paragraphs 3 and 4 of his witness statement:
3. That on the 5th day of

June, 2009 I heard a strange noise in the neighbourhood and when I came out, I saw four (4) persons breaking the back door of the 2nd plaintiff’s flat.
4. That I demanded to know the reason but they simply identified themselves as policemen and asked me whereabouts of the 2nd plaintiff to which I replied that I do not know.

The 3rd Respondent denied the allegations of the Appellants. However, the evidence of their witnesses, DW3 and DW4 are, in my opinion, unreliable. In the first place, both of them in their testimonies stated that the report of the 2nd Respondent to the 3rd Respondent sometime in 2010. This date is totally out of sync with the evidence of 2nd Respondent. The report to the 3rd Respondent was said to have been made sometime in March 2009. The arrest of the 2nd Appellant was on 4/3/2009. The evidence of DW3 and DW4 on when a report was made to them by the 2nd Respondent, cannot therefore be the true position.

That aside, DW3 and DW4 both stated that they went to the residence of the 2nd Appellant to invite him to the station but gave no date of the said visit. They met the 2nd Appellant who requested for time to

dress up. They stepped out of the parlour to wait outside. Under cross examination, while DW3 said that after they stepped outside to wait for the 2nd Appellant to dress up, the front door was locked behind them. He further said, page 412:
“When we waited for him in vain, we re-entered the house through the back door.”
DW4 on the other hand under cross examination said, page 413:
“…when we came out of the parlour, the door was locked behind us but not with key. Nkem entered through the front door. There is a back door in the house.”

In their statements on oath, DW3 and DW4 both admitted that Supol. Nkem being a senior police officer exercised his power of ingress led us (them) into the house through the door the 2nd plaintiff (2nd Appellant) escaped from.

Now, if the 2nd Appellant had escaped through the front door, the officers of the 3rd Respondent would have definitely seen him, therefore they meant the back door. The evidence of DW3 and DW4 under cross-examination was in conflict over this issue, and contradicted their written depositions.

A piece of evidence is said to contradict another when

it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy in the both: Nnadike & Anor v. Nwachukwu (2019) LPELR-48131(SC); Yakubu v. Jauroyel & Ors (supra), (2014) LPELR-22732(SC); Odunlami v. The Nigerian Navy (2013) LPELR-20701(SC). On the whole, the evidence of DW3 and DW4 was not only contradictory but was manifestly unreliable. Restating the position of the law on contradictory evidence, the apex Court, per Ogunbiyi, JSC inKayili v. Yilbuk & Ors (2015) LPELR-24323(SC) at page 68, said:
“The law is well positioned that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must be rejected. SeeMogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393.”

The evidence of DW3 agrees with the testimony of PW3 to the effect that the officers of the 3rd Respondent entered through the backdoor of the 2nd Appellant’s residence. PW3 witnessed the breaking of the 2nd Appellant’s back door by the officers of the 3rd Respondent

and informed the 2nd Appellant. PW3 was not cross examined on this piece of evidence. Fact, one can infer from the jumbled evidence of DW3 and DW4 that they entered the residence of PW1 through the back door.

The evidence of PW1 was that the following items were destroyed by officers of the 3rd Respondent:
(a) Car garage door.
(b) Courtyard iron gate.
(c) Door to living room.

It is not certain which of these items fits into the description of the destroyed back door, as witnessed and testified by PW3. Nevertheless, the evidence reveals that 3rd Respondent through its officers and maliciously activated by the 2nd Respondent, first infringed upon the personal liberty of the 2nd Appellant on 4/3/2009 – 513/2009 and further infringed upon his right to privacy by invading his residence on 5/6/2009 and destroying his back door. For this infringement of his constitutionally guaranteed fundamental rights to personal liberty, privacy and property, I would award damages of N500,000.00 against the 3rd Respondent in favour of the 2nd Appellant. Issues 3 and 4 are thus resolved In favour of the Appellants.

This appeal has merit and hereby

succeeds. The judgment of the lower Court made on 14/5/2015 in Suit No MHC/137/2011 in favour of the Respondents is hereby set aside. It is further ordered that damages of N500,000.00 is awarded against the 2nd Respondent and in favour of the Appellants. Damages of N500,000.00 is awarded against the 3rd Respondent in favour of the 2nd Appellant. The Appellants are also entitled to costs of N100,000.00 against the 2nd and 3rd Respondents.

ADAMU JAURO, J.C.A.: I have read before now the judgment just delivered by my learned brother ONYEKACHI AJA OTISI JCA. I am in agreement with the reasoning and conclusion contained therein to the effect that the appeal is meritorious and ought to be allowed.
I adopt the judgment as mine and join my brother in allowing the appeal. I abide by all consequential orders made, including that on costs.
Appeal Allowed.

JOSEPH EYO EKANEM, J.C.A.: My learned brother, Otisi, JCA has resolved the issues for the determination of this appeal comprehensively. I agree with my Lord that the appeal has merit and must succeed.

Parties are bound by the terms of their contract and when there is a dispute between the

parties to a written agreement, the only authentic and legal source of information for the purpose of resolving the same is the written document. See Union Bank Nigeria Ltd V Ozigi (1994) 3 NWLR (Pt. 333) 385, Larmie V Data Processing Maintenance and Service Ltd (2006) 133 LRCN 1, BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209 and ABC (Transport Company) Ltd V Omotoye (2019) 14 NWLR (Pt. 1692) 197.

The dispute in respect of the contract under consideration is as to the lawfulness of the deduction of the sum of N180.000.00 from the total contract sum of N994,497.15 by the 1st respondent. The resolution of the dispute lies in Exhibit 8, the written contract between the 1st respondent and the 1st appellant. Clause 3, paragraph 12 (iii) and (iv), clause 16 (i) and (ii) as well as the Bill of Quantities (which forms part of the contract) justify the deduction of the sum of money the subject of the complaint of the appellants. Items 6 and 7 of the Bill of Quantities expressly provide for the said sum of money and so the complaint of the appellants is unfounded.

In regard to the fundamental rights of the 2nd appellant, the learned judge of the

trial Court found as follows:
“It is clear from the above that the 2nd defendant reported the matter to the Police with the aim of using the police to recover the loan and not for the crime of issuing dud cheque. It is in evidence that part payment of N250.000.00 was made in February 2009, so I do not believe the DW2 when he said that the 2nd plaintiff refused to see them in the Bank when his attention was drawn to the cheque with the 2nd plaintiffs response to the drawing of his attention to the cheque by payment of part of the loan, I do not see the existence of a probable cause necessitating the report of the matter to the police in March 2009. I therefore hold that the report was actuated by malice and that it was intended to make the 3rd defendant to recover the balance of the loan from the plaintiffs. I hereby resolve Issue No. 2 in favour of the plaintiffs and hold that the 2nd defendant had no reason to suspect the plaintiffs of having committed an offence requiring Investigation by the 3rd defendant at the time of making the report because the 2nd plaintiff had been in touch with her and had promised to pay the balance of the loan in March, 2009.”

Since there is no ground of appeal which attacks the finding above, the same remains binding and conclusive between the parties. SeeHeritage Bank Ltd V Bentworth Finance (Nig) Ltd (2018) 9 NWLR (Pt. 1625) 420 and Chudi Verdical Company Ltd V Ifesinachi Industries (Nig) Ltd (2018) 16 NWLR (Pt. 1646) 520.

Having found that the report made against the 2nd appellant was without probable cause and that it was actuated by malice, the import was that the arrest and detention of the 2nd appellant was unconstitutional and unlawful. Damages ought to have been awarded automatically in favour of the 2nd appellant.
In Okonkwo V Ogbogu (1996) LPELR – 2486 (SC) P. 27, Ogwuegbu, JSC, held that:
“Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Where liberty has been interfered with damages are given to vindicate plaintiffs right even though he has not suffered any pecuniary damage.”
See also Jim – Jaja V Commissioner of Police (2013) 6 NWLR (Pt. 1350) 225, 244 – 245 and 254 and Muhammad V IGP (2019) 4 NWLR (Pt. 1633) 492, 518 – 519.
Generally, it is the duty of the citizens to

report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide. See Fajemirokun V Commercial Bank (Credit Lyonnais) Nigeria Ltd (2009) 5 NWLR (Pt. 1135) 588. Where a person was actively instrumental in setting the law in motion against another leading to his arrest, he is liable for the arrest. Having made the report without probable cause and being actuated by malice, the 2nd respondent was liable for the arrest and detention of the 2nd appellant. See Okonkwo V Ogbogu supra and Okafor V Abumofuani (2016) 2 NWLR (Pt. 1525) 117, 149 where Peter – Odili, JSC, stated that:
“It is a correct representation of the law that if a report as in this case is made to the police which has been found to be totally false, malicious and without foundation, it is the maker of the report that is liable in damages to the plaintiff for false imprisonment.”
In this instance, the trial Court was duty bound to award damages in favour of the 2nd appellant against the 2nd

respondent for the breach of his fundamental rights. It is my further view that the 3rd respondent also ought to have been mulcted in damages for the breach of 2nd appellant’s right to personal liberty as well as his right to privacy.

The very fact that the police arrested the 2nd appellant and released him on bail upon extracting an undertaking from him to pay the balance of the loan, clearly shows that the arrest of the 2nd appellant was not for the issuance of dud cheque but that it was for the purpose of compelling payment of the balance of the loan. In Jim – Jaja V Commissioner of Police supra 243, it was stated that:
“If the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime, the appellant could not have been released on bail on a mere undertaking to repay the loan, a civil mater.”
It has been held over and over that it is not the function of the police to recover loans. See Afribank PIc V Onyima (2004) 2 NWLR (858) 654, Igwe V Ezeanochie (2010) 7 NWLR (Pt. 1192) 61 and Jim – Jaja V Commissioner of Police supra. For the above and more detailed reasons ably and admirably marshaled in the lead judgment

of my learned brother; I also find merit in the appeal as regards failure of the trial Court to provide a remedy for the breach of 2nd appellant’s fundamental right. I accordingly allow it and abide by the consequential orders made in the lead judgment.

Appearances:

A.O. Aruta, Esq. For Appellant(s)

S.D. Swem, Esq. – for 1st Respondent.
A. A. Chukwuma, Esq. – for 2nd Respondent.
No appearance for the 3rd Respondent For Respondent(s)