MR. OLUKUNLE AKINDE & ANOR v. ACCESS BANK PLC. & ANOR (2014)

MR. OLUKUNLE AKINDE & ANOR v. ACCESS BANK PLC. & ANOR

(2014)LCN/7171(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of May, 2014

CA/L/35M/2010

RATIO

WHETHER AN APPEALATE CAN INTERFERE WITH THE DISCRETION OF A TRIAL JUDGE

In as much as a discretion is always that of the trial court and not of the Appeal Court, a judicial discretion ought to be found upon the fact and circumstance presented to the Court, from which it must draw conclusion governed by law – THE UNIVERSITY OF LAGOS & ANOR V. CIO. OLANIYAN & 2 ORS. (2005) 4 SCM 189; JOSEPH AMOSHIMA V. THE STATE (2011) 6-7 SC (PART 111) 1.

Where a trial Judge is shown not to have erred in principle, his exercise of a discretion should not be interfered with, unless the appellate Court is of the opinion that his conclusion is one that invokes injustice – NABSONS LIMITED V. MOBIL OIL NIGERIA LTD (1995) 7 SCNJ 267. Per RITA NOSAKHARE PEMU, J.C.A.

WHEN AN EXERCISE OF DISCRETION ON WRONG PRINCIPLES OCCURS

Exercise of discretion on wrong principles may occur when a Judge fails to advert to relevant consideration.

In SARAKI V. KOTOYE (1990) 6 SC 1 it was held inter alia that the appellate Courts interference with the exercise of a trial Court’s discretion can only be justified, if the trial Court exercises its discretion under a mistake of law, or of fact, or it is shown to have taken into account, irrelevant facts, or disregarded relevant and material facts, or it was exercised contrary to principles of justice.

A Courts’ exercise of its discretion, without averting to all the peculiar facts and circumstances of the particular case before it, has been said to be as bad as its exercise upon a wrong principle. JIMI ODUBA V. SHHPV AARTOUN DERNEMING HOUTMANGRACHT & ANOR (1997) 5 SCNJ 216. Per RITA NOSAKHARE PEMU, J.C.A.

WHETHER THE COURT CAN AWARD COMPENSATION ON LIBERAL TERMS WITHOUT RECOURSE TO COMMON LAW PRINCIPLES

In respect of fundamental rights under the fundamental rights rules, once an applicant proves that his right to liberty had, for instance, been infringed, the court is entitled to award compensation on liberal terms to the injured party against the party at fault without recourse to common law principles on award of damages, unlike in ordinary action for the invasion of a person’s right to personal liberty in which the award of damages is based on conservation scale obtainable under the Common Law. See Jim – Jaja V. Commissioner of Police Rivers State and Ors. (2013) 6 NWLR (Pt. 1350) 225. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. MR. OLUKUNLE AKINDE
2. OLUTRADE NIGERIA LIMITED Appellant(s)

AND

1. ACCESS BANK PLC.
2. COMMISSIONER OF POLICE LAGOS STATE Respondent(s)

RITA NOSAKHARE PEMU, J.C.A.: (Delivering the Leading Judgment): The action, subject matter of this appeal was commenced by Writ of Summons and Statement of Claim dated 25th February 2004, in which the Plaintiffs (Appellants in this appeal) sought seven (7) reliefs against the Defendants (Respondents) – pages 1-8 of the Record of Appeal.
This appeal is from the decision of Aliyu J. sitting at the Federal High Court, Lagos, delivered on the 19th of May 2008.
It is specifically against that part of the decision of the lower Court in which the sum of N200,000.00 (Two hundred thousand naira) was awarded as exemplary damages in favour of the Appellants.
The Appellants have no grouse against the remaining part of the Judgment.

FACTS SUCCINTLY PUT.
The Appellants have obtained a facility from the 1st Respondent and somewhere along the path, the Appellants settled part of the facility, and then a dispute arose between the parties because of exorbitant interest charges on the overdraft facility.
On the 13th of February 2004, a meeting was arranged between the 1st Appellant and the officials of the 1st Respondent at the 2nd Appellant’s head office. The officials of the 1st Respondent suddenly arrived at the venue of the meeting with armed police officers from CID Panti Street, Ebute Metta, Yaba. They shot into the air, arrested the 1st Appellant, and bundled him to the State C.I.D Panti Yaba.
This informed the 1st Appellant originating a process in Court for the enforcement of his human right to liberty and claimed the sum of N50,000,000.00 (Fifty million naira) as damages against the Respondents jointly and severally for false imprisonment, unlawful detention, degrading and inhuman treatment through handcuffing. They also claimed for the forceful seizure of the Appellants’ truck and trailer.
On the 19th of May 2008, the learned trial Judge found for the Appellants, but awarded a paltry sum in damages, which is the sum of N200,000.00 (Two hundred thousand naira).
The Appellants are aggrieved by this and have filed a Notice of Appeal on the 18th of August 2008 – pages 414 – 416 of the Record of Appeal. The Notice of Appeal has just one Ground of Appeal which is that
”THE TRIAL COURT ERRED IN LAW WHEN HAVING HELD THAT THE RESPONDENTS VIOLATED THE FUNDAMENTAL RIGHTS OF THE APPELLANTS AND THAT THE RESPONDENTS ACTED UNCONSTITUTIONALLY, AWARED THE SUM OF N200,000.00 AS EXEMPLARY DAMAGES IN FAVOUR OF THE APPELLANTS.”

The Appellants filed their Brief of Argument on the 21st of April 2011 which is settled by Kingdom Uche Ani Esq.
The 1st Respondent filed its Brief of Argument on the 13th of July 2011, but same was deemed filed on the 22nd of May 2013. It is settled by Lekan Awogbemila Esq.
From records, the 2nd Respondent filed no Brief of Argument.
The Appellants had distilled just one issue for determination in considering this appeal. It is”WHETHER, HAVING REGARD TO THE EVIDENCE BEFORE THE COURT AND THE FAR-REACHING AND SPECIFIC FINDINGS OF FACT MADE BY THE TRIAL COURT TO THE EFFECT THAT THE 1ST APPELLANT’S FUNDAMENTAL RIGHTS WERE GROSSLY VIOLATED, THE AWARD OF N200,000.00 AS AGGRAVATED/PUNITIVE DAMAGES IS NOT RIDICULOUSIY LOW AND INADEQUATE.”

The 1st Respondent distilled just one issue for determination in his Brief of Argument. It is put thus
”DO GROUNDS EXIST FOR THE HONOURABLE COURT TO VARY THE QUANTUM OF DAMAGES AWARDED BY THE LOWER COURT IN EXERCISE OF ITS DISCRETION IN THE LIGHT OF THE LOWER COURT’S THOROUGH GRASP OF THE FACTS AND APPLICABLE LAW TO THE ISSUE OF INFRACTION OF FUNDAMENTAL HUMAN RIGHTS?”
On the 27th of February 2014, the parties adopted their respective Briefs of Argument.
The respective issues of the parties can be said to coalesce, as it affects the issue of award of damages. While it is an exercise of the Court’s discretion to award damages, same must be exercised judiciously and judicially and the award must not be seen to be perverse.

The totality of a Judgment may be perverse or not. Ipso facto, while a Judgment may be sound and well articulated, part of it which forms part of the entire Judgment may be perverse, and if so,it is the duty of the appellate Court to correct it.

It is the Appellants’ contention that it is the duty of the trial Court to consider the evidence before it, as this provides an insight as to the intensity of the pain and suffering occasioned on the 1st Appellant. Referring to the uncontroverted evidence of the 1st Appellant as PW1 in the Court below, which he referred to as clear, convincing and uncontroverted, the evidence of the Respondents’ sole witness did not controvert same.
That in the face of the learned trial Judge satisfaction that much injury and pain was meted on the 1st Appellant, he ought to have awarded commensurately the appropriate damages.
He submits that the damages awarded was glaringly insufficient and inadequate to, not only assuage the Appellants, but serve as a deterrent to others. That the award is patently ridiculous when juxtaposed with the evidence placed before the lower Court, and which evidence was duly acknowledged in the Judgment of Court.
The Appellant has submitted that this appeal does not connote that the findings of the lower Court is perverse, but that there is no correlation between the findings of the Court and the award. He submits that the evidence laid before the trial Court, which the Court accepts, points to the culpability of the Respondents who should be punished by way of punitive damages.
He submits that the award of N200,000.00, when they claimed the sum of fifty million naira, was insufficient and bears no reasonable relation to the clear findings of the Court below.
The Appellant contends that the award of damages is a discretionary matter, but where it is clear that the trial Court proceeded upon wrong principles, or has taken into account irrelevant matters or failed to take into account relevant matters, or where the award is unreasonably low, the appellate Court must interfere in the interest of justice – PETER V. ASST. INSPECTOR-GENERAL OF POLICE (ZONE 6) CALABAR (2001) FWLR (PT. 49) 1457.
He submits that when a civil wrong is committed under extremely aggravating circumstances, it is just and proper for a Court to award exemplary damages.
Citing NEWBREED ORGANIZATION LTD V. ERHOMOSELE (2006) ALL FWLR (PT. 307) PAGE 1016, he submits that an appellate Court has power to amend an award given by a trial Court, as and when the justice of the case so demands.
The 1st Respondent submits that there is a difference between findings of the Court and evidence adduced by the parties.
He tried to draw a distinction between factual findings of the culpability of the Respondents, as it relates to the alleged aiding the arrest, and detention of the 1st Appellant, but that there was no findings of the alleged ill treatment meted out to the 1st Appellant.
He submits that where there is no appeal or complaint on any issue from the lower Court, the Appeal Court must hold that such situation remains. Citing BAKARE VS. NRC (2007) 17 NWLR PART 1064 PAGE 606 AT PAGE 638 PARAGRAPH G.
He submits that damages are not granted on sentiment or sympathy but rather on legal evidence – EFFIONG VS. A.I.S.S. LTD. (2011) 6 NWLR PART 1234 PAGE 226 AT 276.
That award must be granted based on peculiar grounds.
That the lower Court while conceding that the award to be granted must be exemplary, the sum awarded was exemplary enough according to the Court’s opinion.
That in the present case, the unlawful arrest and detention proved essentially, amounted to trespass on the 1st Appellant only. No economic loss was pleaded, proved or upheld by the lower Court.
He submits that the claim of the Appellants was for four declaratory reliefs, one injunction and N50 million damages for false imprisonment, unlawful detention, degrading and inhuman treatment. That the Appellants did not ask for compensation for economic loss though he could have done so. That a Court cannot grant what was not asked for.
He submits that the issue of great financial and economic loss of either the 1st and 2nd Appellants was not pleaded, given in evidence or acknowledged by any findings of the Court below. Citing ODOGU V. A.G. FEDERATION (1996) he submits that in that case the Appellants’ claim for upward review of damages based on economic loss as part of his damages succeeded, because the loss of N20,000.00 per annum during his detention was pleaded and proved.
That the Appellants did not claim exemplary or punitive damages but claimed general damages.
A cursory look at the reliefs sought by the Appellants at the lower Court shows that relief (v) seeks N50 million as damages against the Defendants jointly and or severally for false imprisonment, unlawful detention, degrading and inhuman treatment through handcuffing and forcible seizure of the Plaintiffs’ trucks and trailers.
It seems to me that by this pleading, there is no doubt as to why the Appellants seek this amount as damages. This is because there is an alleged infringement of the right of a person which must attract damages.
In Paragraph 22 of the Statement of Claim filed on the 25th of February 2004, the Plaintiffs/Appellants aver thus:
‘The Plaintiffs will further contend that the handcuffing of the Plaintiff on the basis of a duly secured facility is a violation and on invasion of the fundamental right of the 1st Plaintiff and amounted to indecent and degrading treatment under the Constitution of the Federal Republic of Nigeria”
In answer to this averment, the 1st Defendant/1st Respondent in paragraphs 5 and 6 of the amended Statement of Defence simply averred thus:
PARAGRAPH 5 “1st Defendant denies knowledge of the fact that 1st Plaintiff was maltreated”
PARAGRAPH 6 “1st Defendant emphatically denies that it aided, abetted or canvassed the breach of any of the Plaintiffs human rights but avers that after it reported the matter to the Police, further interactions of 1st Defendant with the 2nd Defendant were limited to times when the 2nd Defendant invited the 1st Defendant either to indentify address of the Plaintiffs, trucks or to substantiate allegations against the Plaintiffs”.
It is apparent that the claim of the Appellant was not brought under the Fundamental Rights Enforcement Law, but by Writ of Summons.
The 1st Respondent had submitted that there are no findings of the alleged ill treatment meted out to the 1st Appellant.
I am of the view that this is not true. At pages 432-437 of the Record of Appeal, the learned trial Judge exhaustively made its findings of fact. Let me reproduce some of these facts.
“With due respect to the learned Counsel, I cannot be carried along that argument in the light of the facts and evidence presented in this case. It is the correct position of low that o mortgage is entitled to take possession of mortgaged property pursuant to his right of the mortgaged agreement. See the case of Awojigbage Light Ind. V. Chinukwe (1995) 4 NWLR (Pt.390) 379. However, the avenue for taking possession of such mortgaged property where a dispute arises is through the courts of law, not through the police. I am in agreement with Mr. Igwebuike when the learned counsel submitted that if it has been truthfully disclosed to the police that the bank facility was secured through an agreement with landed properties, it would hove, in the counsel’s words, “affected the inference drown on the Plaintiffs’ assumed culpability” by the 2nd Defendant”.
“Section 35 of the constitution of the Federal Republic of Nigeria 1999 provides circumstances under which a person may be deprived of his or her liberty. Subsection (1)(e) particularly provides that a person may be deprived of his liberty upon reasonable suspicion of his having committed a criminal offence. This is where the police power to arrest a person derives its source. In the circumstances of this case, it is not reasonable to suspect that the 1st Plaintiff has committed offence of fraud as stated in the 1st defendant’s petition to the police. Therefore, in the light of all I have stated above, I answer the lone issue raised by me in the affirmative. That is to say, it is unreasonable and unjustifiable in law and in facts of this case to arrest and detain the 1st plaintiff on a purely civil transaction.”
“In this case I have held that the arrest and detention are unlawful because the defendants did not arrest and detain the 1st defendant in accordance to law i.e. on reasonable suspicion of having committed an offence. It is also clear that the 1st defendant by its petition quoted above falsely instigated the arrest of the 1st plaintiff by alleging that the plaintiffs have committed fraud on their bank. Its aim was to use the police coercive power to force the plaintiffs to repay the facility or to recover mortgaged property as their counsel has put it.”
“But our jurisprudence is replete with procedure for recovering debts or enforcing mortgaged agreements. Section 4 of Police Act does not empower police to recover debts or enforce mortgaged agreements. This is known to the 1st defendant, because ignorance of the law is no excuse, The exercise of the police power to arrest the 1s’t plaintiff and detain him for 3 days 13-16 February 2004 is not pursuant to Section 4 of Police Act in this case as there was no reasonable suspicion of commission of crime. See the case of Mclaren v. Jennings (2003) 3 NWLR (Pt. 808) 470”
The Court further stated thus
“In this case it was acting on the wrong information giving (sic) to it by the 1st Defendant, who knew that no offence was committed”
The Court went on
“The general rule is that a person who is instrumental to the incarceration of the plaintiff will be liable in an action of false imprisonment or on fundamental rights enforcement proceedings. See the case of Ejefor v. Okeke (supra) in this case, the 1st plaintiff has shown by evidence that the 1st defendant was actively instrumental to his arrest and detention unlawfully. The only defence witness said he led the police to the premises of the plaintiffs where the plaintiff was arrested. There was no denial that the 1st plaintiff was detained in the police cell for three days. The conduct of the 1st defendant is arbitrary, oppressive and unconstitutional, and I so hold. I therefore grant the plaintiffs’ reliefs (1), (2), (3), (4) (6) and (7) of their statement of claim.”

In ECHAKA CATTLE RANCH V. N.A.C.B. (1998) 3 SCNJ. 64, at was held that the exercise of discretion is a matter exclusively for the Court to do, after weighing all the circumstances of the case in the interest of justice and the balancing of the interest of the parties involved, including the balance of convenience and disadvantages which might be suffered by any of the parties concerned.

Decidedly, it is a rule of equity that where the exercise of discretion plays a part, it is expected that the Court will act in conformity with the ordinary principles upon which judicial discretion is exercised otherwise an appellate court will interfere with the discretion – GENERAL & AVIATION SERVICES LTD V. CAPTAIN PAUL M. THALIAL (2004) 4 SCM 52; SEER V. STAFFORD JUSTICES (1940) 2 K.B. 33. 43.
In as much as a discretion is always that of the trial court and not of the Appeal Court, a judicial discretion ought to be found upon the fact and circumstance presented to the Court, from which it must draw conclusion governed by law – THE UNIVERSITY OF LAGOS & ANOR V. CIO. OLANIYAN & 2 ORS. (2005) 4 SCM 189; JOSEPH AMOSHIMA V. THE STATE (2011) 6-7 SC (PART 111) 1.
Where a trial Judge is shown not to have erred in principle, his exercise of a discretion should not be interfered with, unless the appellate Court is of the opinion that his conclusion is one that invokes injustice – NABSONS LIMITED V. MOBIL OIL NIGERIA LTD (1995) 7 SCNJ 267.
Exercise of discretion on wrong principles may occur when a Judge fails to advert to relevant consideration.
In SARAKI V. KOTOYE (1990) 6 SC 1 it was held inter alia that the appellate Courts interference with the exercise of a trial Court’s discretion can only be justified, if the trial Court exercises its discretion under a mistake of law, or of fact, or it is shown to have taken into account, irrelevant facts, or disregarded relevant and material facts, or it was exercised contrary to principles of justice.
A Courts’ exercise of its discretion, without averting to all the peculiar facts and circumstances of the particular case before it, has been said to be as bad as its exercise upon a wrong principle. JIMI ODUBA V. SHHPV AARTOUN DERNEMING HOUTMANGRACHT & ANOR (1997) 5 SCNJ 216.
The claim for damages by the Appellants was not a consequential claim, but a substantive claim, and if claimed, must be sustained from the facts before the Court – E.A. AKINBOBOLA V. PLISSON FISKO NIGERIA LTD & ORS. (1991) 1 S.C. (PT. II) 1.
There is no doubt that the learned trial Judge knew and indeed appreciated the vicissitudes which the 1st Appellant went through and suffered in the hands of the Respondents. The Appellants claimed for damages for this inhumane treatment.
However, there is no medical report to show that the 1st Appellant sustained any injury. The 1st Respondents had averred to the fact that the 1st Appellant was not handcuffed – paragraph 2:12 of his Brief of Argument. He did not tell the Police to recover N40 million for them. He only told the Police to help him recover the trucks.
The learned trial Judge appreciated the fact that the 1st Appellant was ill treated.
But the learned trial Judge granted ALL the reliefs sought by the Appellants (as Plaintiffs at the lower Court), including relief 5 where he awarded the sum of N200,000.00 instead of N50,000,000 (Fifty million naira) as damages.
I am of the view that this is fair enough, and the 1st Appellant should be satisfied with this.
I find the exercise of the discretion by the learned trail Judge equitable enough in favour of the 1st Appellant and this Court cannot interfere with the exercise of that discretion.
I find this appeal, in the circumstances, bereft of merit and same is dismissed.
The decision of the lower Court Coram Aliyu J. delivered on the 19th of May 2008 at the Federal High Court Lagos in Suit No. FHC/L/CS/164/04, including the award of damages of N200,000.00 in favour of the 1st Appellant is hereby affirmed.
Parties to bear their costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the considered judgment prepared by my learned brother, Rita Nosakhare Pemu, J.C.A., with which I agree and add by way of emphasis that the action at the court below was not brought under the Fundamental Rights (Enforcement Procedure) Rules to enforce a fundamental right. It was an ordinary action brought by way of writ of summons.
The two modes of action appear to differ. In respect of fundamental rights under the fundamental rights rules, once an applicant proves that his right to liberty had, for instance, been infringed, the court is entitled to award compensation on liberal terms to the injured party against the party at fault without recourse to common law principles on award of damages, unlike in ordinary action for the invasion of a person’s right to personal liberty in which the award of damages is based on conservation scale obtainable under the Common Law. See Jim – Jaja V. Commissioner of Police Rivers State and Ors. (2013) 6 NWLR (Pt. 1350) 225.

Having regard to the fact that the award of N200,000 damages by the court below to the 1st appellant against the 1st respondent for the wrongful detention of the 1st appellant for a duration of three (3) days was, in the circumstances of the case, not manifestly low or arbitrary, I find myself unable to interfere with the said exercise of discretion by the court below, as the said discretion was fairly, judiciously and judicially exercised by the court below.
It is on account of the reason given above and for the painstaking reasons contained in the lead judgment that I too find the appeal unmeritorious and hereby dismiss it and abide by the consequential orders contained in the said lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have before now the lead judgment just delivered by my learned brother R.N. Pemu JCA.
I agree with the reasoning and conclusion contained therein. I also hold that the appeal be dismissed for lack of merit and I abode by the consequential orders made in the lead judgment including that of costs.

Appearances

Kupolati Esq with K.U. Ani Esq.For Appellant

AND

Olonade Ogunmola – for the 1st RespondentFor Respondent