THE HON. MINISTER OF DEFENCE & ORS v. MRS. ETTA BASSEY EPHRAIM
(2014)LCN/7510(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of November, 2014
CA/C/109/2011
RATIO
COMPANY LAW: LEGAL PERSONALITY; THE JURAL ENTITIES OR UNITS TO WHICH THE LAW USUALLY ASCRIBES LEGAL PERSONALITY
As earlier on stated in the course of this judgment, it is even the law that the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect, In Nkporinwi vs. Ejire (supra) the Court held that:
“It is well settled principle of Law that the major jural entities or units to which the Law usually ascribes legal personality are:
I. Human beings (Natural Persons).
II. Companies incorporated under the various companies Acts.
III. Corporation sole with perpetual succession.
IV. Trade Unions
V. Partnerships and
VI. Friendly societies per. PAUL OBI ELECHI, J.C.A.
LABOR LAW: EMPLOYMENT; THE CATEGORIES OF EMPLOYMENT AND HOW TO DETERMINE WHETHER A SERVANT OR EMPLOYEE IS UNDER VICARIOUS LIABILITY
The Supreme Court of Nigeria per Edozie JSC in Idorima vs. Rivers State Civil Service Commission (2005) ALL FWLR pt 285, page 431 for purposes of vicarious liability indentified three categories of employment:
I. A pure master and servant relationship.
II. Employment where office is held at pleasure.
III. Employment protected by statute.
In determining whether a servant or employee is under vicarious liability, Lord Denning adopted a useful alternative to the control test, one which is or in keeping with the realities of modern business. See Steveson, Jordan and Harrison Ltd. vs. Macdonard & Evans Ltd. (1952) 1 LTR 101 at 111 where it was held thus: “Under a contract of service a non employed as part of a business and his work is above as an integral part of the business whereas under a contract for service, his work, although done for the business is not integrated into it but is accessory to it.” per. PAUL OBI ELECHI, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT OF FAIR HEARING; WHAT FAIR HEARING ENCOMPASSES
Fair hearing within the meaning of Section 36(1) of the 1999 Constitution as amended means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It encompasses not only compliance with the rules of natural justice but also audi alteram partem. It also entails doing in the trial whether civil or criminal trial all the things which will make an impartial observer leave the Court room to believe that the trial has been balanced and on side of the trial. See Alhaji Ishiaku Mohammed vs. Kano N. A. (1968) 1 ALL NLR 424; 1 ANLR 411 where Ademola CJN stated inter alia as follows:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. The true test of a fair hearing, it was suggested by Counsel, is the impression of a reasonable man who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this” See also Ntukidem vs. Oko (1986) 5 NWLR Pt.45, Page 909 (1989) 12 sc 126, (1986) 17 NSCC 1303. Tunbi v. Opawole (2000) 4 WRN 44 (2000) 2 NWLR Pt.644, Page 275, (2000) 1 SC 1. per. PAUL OBI ELECHI, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO CREATE THE ATMOSPHERE OR ENVIRONMENT FOR FAIR HEARING OF A CASE AND WHETHER IT IS THE DUTY OF THE COURT TO MAKE SURE THAT A PARTY TAKES AN ADVANTAGE OF THE ATMOSPHERE
From my consideration of the numerous pieces of adjournments granted by the Court, it appears to me quite rightly that the lower Court discharged its duty of creating an avenue of fair hearing to all the parties in the suit. Even the Appellant benefitted from that discretion exercised by the Court in affording to all the parties an opportunity of being heard in the matter. The Appellant cannot at this eleventh hour of the case be heard to complain that the lower Court heard the matter before the time allowed by the Rules. Even until the matter went to its conclusion, the Appellant was part and parcel of the case and also took part in all the stages of the proceeding without complaining. See the case of Newswatch Communication Ltd. vs. Atta (2006) ALL FWLR Pt. 318 Page 580 at 60, where per Niki Tobi JSC held as follows:
“It is the duty of the Court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes an advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him of fair hearing. That is not fair to the Court and Counsel must not instigate his client to accuse the Court of denying him fair hearing.” per. PAUL OBI ELECHI, J.C.A.
COURT: INTERFERENCE; WHETHER THE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT AND THE CIRCUMSTANCES WHERE THE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT
An Appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include:
I. Where the exercise of discretion by the trial Court is perverse.
II. Where the Court acted under wrong principles of Law or
III. Where the Court acted in disregard of Applicable principles or
IV. Where the Court acted in misapprehension of facts or
V. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
VI. Where injustice will result if the Appellate Court does not act or
VII. Where the amount awarded is ridiculously high that it must have been an erroneous estimate of the damages. See Zicks Press Ltd. vs Ikoku (1951) 13 WACA 1988, Idahosa vs. Oronsaye (1959) SCNLR 407, (1959) 4 FSC 166, Balo vs. Bankole (1986) 3 NWLR Pt. 27, Page 141, Elf Nig. Ltd. Vs. Sillo (1994) 6 NWLR Pt.350, Page 258 (1994) 19 LRCN 153, Ahmed vs. CBN (2013) 47 WRN 51, Arab Contraction Ltd. & Anor vs. Asuquo Sunday Isaac (2013) 5 WRN 57, Balogun vs. Labaran (1988) 3 NWLR Pt.80, Page 66, Ogu vs. Ihejirika (1991) 4 NWLR Pt. 185, Page 488, Int’l Messengers Nig. Ltd. Vs. Pegafor Ind. Ltd. (2005) 15 NWLR Pt.947, Page 1 (2005) 5 SCNJ 120, Okolo vs. Dakola (2006) 47 WRN 1, (2006) 14 NWLR Pt.1000 Page 401, (2006) 7 SCNJ 2988, (2006) ALL FWLR 401. per. PAUL OBI ELECHI, J.C.A.
JUSTICES
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria
Between
1. THE HON. MINISTER OF DEFENCE,
2. THE CHIEF OF ARMY STAFF
3. THE CHIEF OF DEFENCE STAFF
4. THE COMMANDING OFFICER, 146 BATTALION, EBURUTU CALABAR,
5. LT. COL. K.N. GARBA Appellant(s)
AND
MRS. ETTA BASSEY EPHRAIM Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is appeal against the Ruling of the Federal High Court, Calabar delivered on the 28th day of February, 2011. The Respondent at the lower Court had brought an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 and claimed the underlisted reliefs against the Appellant viz:
1) A declaration that the Applicant is entitled to her right to dignity of human person and personal liberty as enshrined in Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 and cannot be treated like an animal by the Respondents.
2) A declaration that the arrest and detention of the Applicant on the 27th of March, 2010 at the Eburutu barracks guardroom, among ten male inmates made up of lunatics, smokers of Indian hemp and other military criminals by the direct order of Lt Col. K.N. Garba amounts to false imprisonment, unlawful detention, inhuman and degrading treatment is unconstitutional, illegal and a flagrant breach of the Applicant’s Fundamental Right as enshrined in Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999.
3) A declaration that the Applicant is entitled to monetary compensation for the breach of her Fundamental Right.
4) N150,000,000.00 (One Hundred and Fifty Million Naira) only for the harassment fortune, pains, trauma and other forms of very excruciating experiences the Applicant was forced to go through in the hands of the Respondents.
In a considered Ruling, the lower Court entered judgment for the Respondent as per her claim and awarded N60,000,000.00 Naira as damages and N60,000.00 as cost against the Appellants. This appeal is brought against the said judgment.
In her affidavit in support of her Application, the Respondent stated thus:
I am the Applicant in this case and by virtue of my position I am very conversant with the facts herein deposed to.
I am a history teacher of Army Day Secondary School, Ikot Ansa.
On Saturday, 27th of March, 2010, I and other staff of the school had gone to school to conduct a re-scheduled exam for students.
At the conclusion of the invigilation of the exams, I among other staff including the principal of the school gathered outside discussing Army Day African Cup of Nation (ADACON).
While there discussing, a motorbike with a rider and a passenger rode to a stop in front of the school compound and suddenly the rider started shouting on top of his voice at one of my teacher colleagues, (Mrs. Theresa Egrinya) demanding to know why she sent her son to knock him down.
He went on saying – “pack out of my barracks, I own this barracks”
As the threat to eject Mrs. Theresa Egrinya continued, the lady in question fell on her knees begging for leniency, while my principal, myself and others around joined in begging him for leniency.
As soon as the man heard me saying “please Sir, forgive her” he got down of the bike and with an unprovoked and unimaginable fury charge at me, asking “who are you.” And I simply told him “I am a teacher in the school.”
Immediately, he asked me to pack out of the barracks. When I told him I don’t stay in the barracks he ordered me to leave the premises immediately. In obedience to his order, I moved towards the staff room to get my bag and he became more infuriated shouting “so you have an office, you want to show me that you have an office.” He moved towards me removing his shirt as though he would punch at me. I moved backward, apparently to avoid him striking me.
He then ordered one of the soldiers on guard to lead me to the office to park my things and then lock me up at the guard room.
I was carried on the motor bike and as we proceeded towards the guardroom he saw us and scolded the soldier carrying me on the bike saying “you carried her on your bike eh! This is why the bloody civilian are using you people the way they do.” Drop her and let her trek with her feet. And so we walked the remaining distance to the guardroom.
On arrival at the gate of the guardroom, the soldier handed me over to the Regimental Police (RP) saying, “the CO asked me to hand over this woman to you, to take statement from her and lock her up in the guardroom.” And this was how I got to know that the man that ordered my detention was the Commanding Officer Lt. Col. K.N. Garba.
Even though the (RP) said he was not responsible for statement taking as that was not part of his functions, the soldier who took me there, out of fear of the reaction of the CO forced him to start taking statement from me. However, shortly afterwards the intelligence man walked in and I was handed over to him. He gave me a statement form to complete.
I completed the form with my statement and handed over to him. He used the statement to further interrogate me after which I signed as correct before he handed me over to the RP who then led me to the guardroom.
The guardroom where I was locked up already had 10 inmates, all male, with one lunatic and many others apparently drunk while some others were smoking profusely causing the stench from the combined smoke of Indian hemp and cigarette to make the room completely inhabitable to people of unsimilar virtues.
One of them tortured me by using lawmover to hit me all over my body and demanded to know who brought me to this kind of place. Even in his insane mood he knew it was inhuman for me to be kept there among them.
This was my first and most excruciating experience. It turned me apart emotionally and psychologically making me feel completely dehumanized and hysterically traumatized.
I can hardly come to terms with the possible reason why the CO did this to me. Could it be because I am a bloody civilian as he already referred to me, or because I am just a mere teacher or because I am a Christian and not a Muslim like him or because I am a wife to a bloody civilian university teacher and not a military officer? If I was a wife of a fellow lieutenant colonel, would Co. K.N. Garba lock me up in a guardroom amidst 10 military detainers without regard to the obvious chance of my being raped? I wondered!
I was locked up in a guardroom for 8 hours in a place meant for soldiers under punishment and those others with questionable characters, smokers, lunatic and possible rapist with total disregard to the fact that I am not only a civilian but a woman and indeed a married woman.
When I was finally released I wrote a petition to the Commissioner of Education demanding that something be done urgently by the relevant authorities to forestall the re-occurrence of such ugly incidence. A copy of the said petition is attached here as Exhibit BC.1.
Also the principal of the school where I teach and where the incidence took place, Elder (Mrs) G.O. Bassey-Duke wrote a petition to the Commissioner of Education demanding for an immediate attention of the Government to such issue with the aim of forestalling further occurrences of same. The said letter is attached here as Exhibit BC.2.
After all these, nothing was done. This is why I came before this Honourable Court to seek for redress.
For the foregoing reasons, I am asking that this Honourable Court should award me damages in the sum of N150,000,000.00 (One Hundred and Fifty Million Naira) only for the unlawful detention, inhuman and degrading treatment meted out to me, trauma and all other inconveniences which I was made to suffer as a result of the 5th Respondent, the agent of the 1st – 4th respondent.
The Appellants in the suit at the lower Court upon being served with the originating processes and on going through the Application and the affidavit in support, filed a Notice of Preliminary Objection to strike out the names of the 2nd and 4th Appellants in the suit. The grounds upon which the Preliminary Objection is brought are:
a) That the suit is incompetent.
b) That the 2nd and 4th Respondents are not juristic persons as they cannot sue or be sued by virtue of which their names should be struck out as parties in this suit.
c) That the suit as properly formulated is bad in form and in substance and robs the Court of the jurisdiction to adjudicate on the matter.
However, the lower Court on a considered ruling dated the 28th February, 2011 dismissed the Preliminary Objection as being unmeritorious, lacking in substance and untenable in Law.
On the 27th January, 2011, the Appellants filed a 33 paragraph Counter-affidavit challenging the Respondent’s suit. Part of his affidavit evidence states thus:
Paragraph 3:
That apart from being the 5th Appellant on record in this suit, the facts to which I herein depose to came to my knowledge in the course of the performance of my duties as the Command Officer of 146 Battalion, Nigerian Army, Eburutu Cantonment, Calabar.
That the inability of the Respondent to enter appearance in this suit until now is that apart from me the 5th Appellant, the 1st, 2nd and 3rd Appellants have not been served with the originating processes.
That as a serving senior military officer, even though I was served with the originating processes, military regulation does not allow me to enter appearance in a matter in High Court without the consent and authority of the Appropriate Superior Authority (ASA).
That after receiving clearance from ASA and the suit is handed over to the counsel, PSC AGADA, Esq. of counsel and on going through the processes, the said counsel told me and I verily believed him that the current suit against the Respondents is an abuse of court process as the Applicant ought not to bring a fresh application since she had earlier filed an application in suit No. FHC/CA/80M/2010 which contain similar facts and the parties are the same even though struck out for lack of diligent prosecution on the part of Applicant.
That the Respondent’s counsel PSC Agada, Esq. of counsel told me and I verily believed him that this application is not properly before this Honourable Court as some of the parties are not juristic persons and as such, this Honourable Court has no jurisdiction to entertain this Application.
That the Respondent’s counsel PSC Agada, Esq. of counsel told me and I verily believed him that this Application cannot be heard by affidavit evidence, but by Statement of Claim as there are a lot of witnesses to testify in this suit both for the Applicants and the Respondent.
That in the circumstances of the deposition in paragraph 7 above, I urge and pray this Honourable Court to order the parties in this suit to file their Statement of Claim and Statement of Defence and other written statement of witnesses respectively for the just determination to the issues in the suit as the hearing of the Application on affidavit will prejudice the Respondents.
I admit paragraphs 1, 2, 3, 4 and 5 of the Applicant’s deposition, but denied shouting on top of my voice at Mrs. Theresa Egrinya.
I deny paragraph 6 of the Applicant’s deposition as my mission to the Command Day Secondary School was also to seek redress from the principal and to know the parents of the young lad who almost knocked me down with a car while I was going round to carry out inspection of the entire Eburutu Barracks on a sanitation day being 27th day of March, 2010.
Paragraphs 7 and 8 of the Applicant’s disposition as my mission to the command day secondary school was also to seek redress from the principal and to know the parents of the young lad who almost knocked me down, but while the principal and the mother of the boy were trying to beg me the Applicant said why was I backing like a dog as if I was the owner of the whole world.
It was at this point in time I demanded to know her because if she teaches in the Army Day Secondary School, she ought to know me as the Army officer of the battalion where she teaches.
I admit paragraph 9 of the Affidavit in support of the Application to the extent that I told her to leave the Barracks because of her confrontational attitude, pomposity and disrespect to constituted authority. How on earth can the Commanding Officer of unit with over 700 officers and men under my command remove my shirt, is a blatant lie.
I deny paragraph 10 of the Affidavit in support of the Application as I did not order any soldier to take her to the guardroom, but ordered that she should be walked out of the Barracks.
Paragraphs 11, 12 and 13 of the Affidavit in support of the Application are denied because immediately I gave the orders to one of my soldiers to walk the Applicant out of the Barracks I sincerely believed my orders will be carried out according to my instructions and I did not know what happened thereafter.
Paragraph 14 and 15 of the Affidavit in support of the Application are denied as I did not know anything about these assertions; besides, there was no soldier in the unit guardroom. The allegation that Applicant was locked up with 10 male inmates, Indian Hemp smokers or cigarette smokers are mere imaginations.
I deny paragraph 16 of the Affidavit in support of the Application and state that the unit does not have lawnmowers let alone to say keeping such property in guardroom. Such property is kept in the store as a control item which the allegation of a detainee torturing the Applicant using a lawnmower to hit her is a fabrication and the Applicant’s imagination or weeping sentiment so that the court should sympathize with her.
Paragraph 17 and 18 of the Affidavit in support of Application are denied and I state categorically as the Commanding Officer 146 Battalion, I have never had any direct confrontation with any teacher in the school or any Civilian Staff of my unit and so I have no reason to discriminate against the Applicant because she is a Christian. The unit I now command is not unit for the Muslims alone as a matter of fact, Christians formed majority of officers and men. We in the military give high regards to women so I have no reason to punish the Applicant by ordering her to be locked up within the cell containing male inmates. I did not do it and I did not give my soldiers orders that she should be locked up in the guardroom. If the soldier I gave the orders to walk the Applicant out of the Barracks took her to the guardroom he acted on his own.
Paragraph 19 of the Affidavit in support of the Application is denied and I state that when I gave orders to the soldier who was on guard within the premises of the Command Day Secondary School, the principal and other teachers were there and they can bear me witness that I did not order the soldier to take her to the guardroom. I pray the court to give me the opportunity to invite the principal, the mother of the boy who almost knocked me down and other teachers who witnessed the encounter to testify to this fact.
It is further denied that the unit, 146 Battalion has no record of lunatics, Indian hemp smokers and persons of questionable characters as alleged.
When the Regimental Sergeant Major (RSM) met me in the officers mess in the evening of the incident to find out from me if I gave orders for my civilian woman to be detained in the unit guardroom, I told him in the presence of three (3) of my officers that I did not give such orders, that the orders I gave to a soldier was to walk the Applicant away from the barracks. My RSM is a living witness so also are three officers with me when the RSM came to make the enquiry from me.
That when I got the report from my RSM about her detention, I there and then ordered that she should be released and I ordered the RSM to lock up the soldier for acting contrary to my orders.
That when the principal of the Army Day School came to my house at 1730 hours with other persons to plead with me to release the Applicant. I told her and the persons that my unit RSM was there earlier and that I have ordered for her release even though I did not order for her detention. I there and then apologized to the principal for the mix up of my orders to the soldier. I later ordered the soldier to go and meet the Applicant and apologize to her which he obeyed my order and did apologize.
I am not aware of the petition the Applicant wrote to the Commissioner of Education, Cross River State, but I am aware of the one she wrote through the Commander 13 Brigade, Nigeria Army, Calabar to the General Officer Commanding (GOC) 82 Division of the Nigerian Army dated 19th day of March, 2010 concerning the incident in which she was requesting the GOC to discipline me for abuse of power, unreserved apology be extracted from, caution among other requests. The said letter is hereby annexed and marked as exhibit “A”.
Paragraph 21 of the Affidavit in support of the Application is denied and I state that the principal did not write any petition against me to anybody to my knowledge rather, the principal, wrote and forwarded the letter of undertaking written by Theresa E. Egrinya to apologize for what took place on that day. The said letter dated 29th March, 2010 is here annexed and marked as Exhibit “B”.
Paragraph 22 of the Affidavit in support of the Application is denied and I state that the petition written against me to the GOC by the Applicant was dated 29th day of March, 2010. That since the GOC 82 Division of Nigerian Army is not residence in Calabar and since the petition was through my commander, the commander 13 Brigade Nigeria Army, Calabar, it will definitely take some time for it to reach the GOC for his action. However, before the petition could be received by the GOC to act on it, the Applicant decided not to wait, but suit No. FHC/CA/80M/2010 MRS. ETTA BASSEY EPHRAIM VS THE NIGERIA ARMY of which I was made the 4th Respondent. The Applicant did not have the patience to know what was going to be the outcome of her petition to the GOC, but after been barely 8 days she was in court not minding that she is a teacher in a school in the unit I am the commanding officer.
That my reason for asking the soldier who was listening to the encounter to walk the Applicant out of the Barracks on the day of the incident is because of her disrespect for me and calling me a mad dog in the presence of my own subordinate when she said “Why are you barking like a mad dog and you think you are the owner of the world” in presence of other civilian colleagues of hers.
That if there was anybody I was annoyed with on that day it was the mother of the boy who almost knocked me down with a car. If I did not order for the arrest and detention of the said woman Mrs. Theresa E. Ogrinye, what reason do I have to order for the arrest and detention of the Applicant? To who do I go to complain that she called me a mad dog as the civilians are found of the Barracks. I believe that to be a graduate is not a license to disrespect constituted authorities. I suppose not particularly within the domain of such constituted authority.
Paragraph 23 of the Affidavit in support of the Application is denied as the damages of the sum of N150,000,000.00 (One Hundred and Fifty Million Naira) is not only ridiculous and preposterous but it amount to gold digging which the court should not encourage. The 1st, 2nd, 3rd and 4th Respondents have done nothing to the Applicant to warrant them being made parties to this suit as am not agent of any of the other Respondents, but a commissioned officer to other of the Nigeria Army and not their servant. They should not use me as an instrument of vendetta by aggrieved persons to get a pound of flesh from their perceived enemies.
In the first suit filed by the Applicant which was struck out, the Applicant asked for N10,000,000.00 (Ten Million Naira) compensation and since the said suit was struck out I have not had any encounter with the Applicant to the best of my knowledge to warrant her asking me to pay her the sum of N150,000,000.00(One Hundred and Fifty Million Naira). As a public servant it is impossible for me to get such money through out of my life time. I pray the court not to make any money award against me and the other Respondent’s as I did not order for the arrest and detention of the Applicant.
The Applicant should accept the apology already tendered for the mix up in the orders I gave since the school where the Applicant is teaching is meant to be a partner in progress with the unit I now command. I therefore urge and pray the court to strike out this application.
From the affidavit evidence of parties, several issues were distilled for determination in this appeal. For the Appellant, the following issues were distilled for the just determination of this appeal.
1. Whether the learned trial Judge was right in his Ruling when he held that the 2nd and 4th Appellants are juristic persons with powers to sue and to be sued.
II. Whether the Learned trial Judge was not wrong when he held that the failure of the Respondents to contradict by affidavit evidence of the soldier who was ordered by the 5th Appellant to match the Affidavit/Respondent out of the barracks including the affidavit evidence of the Regimental Sergeant Major (RSM) and the three officers mentioned by the 5th Appellant was fatal to the case of the Respondents.
III. Whether the Learned trial Judge was right in his ruling when he held that the 4th and 5th Appellants are vicariously liable for the conduct of the 5th Appellant.
IV. Whether the learned trial judge was not wrong when he refused to consider the defence of the 1st to 3rd Appellant that they were not served with the originating processes as provided by the enabling law.
V. Whether the learned trial judge was not wrong when he held that the counsel to the Respondent PSC Agada Esq. requested for the matter to be adjourned over the phone to the 6th day of December, 2010 whereas the said counsel did not make such a request.
VI. Whether the Learned trial Judge was right to have this suit heard earlier than the period allowed by the enabling law.
VII. Whether the sum of N60,000,000.00 (Sixty Million Naira) against the Appellant are not excessive against the background of the alleged damage or injury suffered by the Applicant.
On the other hand, the Respondent distilled four issues for determination thus:
1) Whether the 2nd and 4th Appellants are juristic persons capable of suing and being sued in law.
2) Whether or not the 1st and 4th Appellants are vicariously liable for the act of the 5th Appellants.
3) Whether in the circumstances of the case, the Appellants can be heard to say that they were denied fair hearing in the Court below.
4) Whether the award of N60,000,000.00 and N60,000.00 as damages and cost respectively are excessive in the circumstances of this case.
The Respondent instituted this action under the Fundamental Rights (Enforcement Procedure) Rules 2009. The Application was brought pursuant to sections 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, Order 2 Rules 1, 2, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the inherent jurisdiction of the Court. The Respondent attached a statement made pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The name and description of the Applicant, the reliefs sought, the grounds upon which the reliefs are sought and a written address.
Worthy of note is that the Fundamental Rights (Enforcement Procedure) Rules 2009 has created a special procedure by which citizens of this country could come to Court for the enforcement of their Fundamental Rights apart from the conventional civil procedure applicable to the High Courts. This is sui generic and enjoins parties to file affidavit evidence for the just determination of their application. There appears to be too much of the proliferation of issues canvassed by parties in this case. While the Appellants have distilled seven issues for determination, the Respondent has four in number. The Supreme Court of Nigeria has on several authorities frowned at proliferation of issues when one issue or two could have well determined the appeal meritoriously. See Okoye vs. Centre Point Merchant Bank Ltd. (2008) ALL FWLR Pt 44, Page 837 – 838, per Ogebe JSC.
As a result therefore, I shall in the course of this judgment consider the Major issues as distilled by parties while some others may be discussed and considered alongside the major ones.
On issue No. 1- Whether the Learned trial Judge was right in his ruling when he held that the 2nd and 4th Appellants are juristic persons with powers to sue and be sued. This issue is common to both parties. The Appellants’ counsel submitted that the office of the 2nd and 4th Appellants though a creation of the Law i.e. the Constitution of the Federal Republic of Nigeria 1999 and the Armed Forces Act Cap A20, Laws of the Federation of Nigeria 2004 but that these Laws did not confer on them with the attribute of perpetual succession with the common seal and the power to sue and be sued. Learned Counsel stated that this argument was proffered at the lower Court but the trial Judge only made passive references to the Constitution of the Federal Republic of Nigeria 1999 and sections 4 and 9 of the Armed Forces Act 2004. The above cited Law does not provide for 2nd and 4th Appellants to be of perpetual succession with common seal and powers to sue and be sued. Accordingly, Counsel submitted that it was erroneous in Law for the trial judge to hold that the 2nd and 4th Appellants can sue and be sued. See General Officer Commanding and 3 Ors vs. Mrs. Christian Olufunke Fakayode (1994) 2 NWLR Pt. 329, page 744, Chief Johnson Emere Nkpom vs. HRH Samuel Oluka Ejike & Anor (2009) ALL FWLR Pt 499 page 450.
On the other hand, the Respondent contended that the 2nd and 4th Appellant are juristic persons capable of suing and being sued. According to Learned Counsel, whether a person is a juristic person is determined by a statute either expressly or impliedly or by common Law. See Nkporinwi vs. Ejire (2009) ALL FWLR pt. 499 page 450. Though it is a general rule of Law that only a Law can confer the attribute, power or capacity to sue or be sued, in the body of the statute creating such a body but where the capacity to sue or be sued is not expressly provided for juristic personality is implied from the express provisions of the enabling statue. In his own submission, Learned Respondent’s Counsel stated that the 2nd and 4th Appellants are conferred with public functions, powers, duties and Responsibilities under the Armed Forces Act 2004 which is exercised to the detriment of others. The command, direction and general superintendence of the Army and its Reserve is vested on the Chief of Army Staff (2nd Appellant). See also 18(1)(2)(3) 7(2) (3) and 8(1)(b) of the Armed Forces Act, Laws of the Federation of Nigeria 2004 where the duties, functions and powers of the 2nd Appellant are spelt out.
Even the 4th Appellant has the Armed Forces Service Correspondence Rank Structure of a Commander as a Lieutenant Colonel under the third schedule to the Act and referred to as the Commanding Officer under S.291(1) of the Act. Therefore as a Commanding Officer of 146 Battalion, Eburutu barracks Calabar, the 4th Appellant like the 2nd Appellant is also vested with the command, direction general superintendence of his barrack at Eburutu, Calabar. The exercise of the duties, powers and functions of both the 2nd and 4th Appellants can be to the detriment of others as herein before revealed in this appeal. See N.F.C.A vs. Laloko (2003) ALL FWLR pt. 144 page 482, Fawehinmi vs. NBA No.2 (2008) ALL FWLR pt 448 page 205 at 307. Also S.1(1) of the Armed Forces Act LFN 2004 with all the above authorities, Learned Counsel submitted that the creation by statute of the Armed Forces with respective service Chiefs to administer the various Constituents of the Armed Forces is a logical conclusion that the Law intended to create or constitute the Chief of Army Staff 2nd Appellant into a juristic person as well as the 4th Appellant.
Inspite of the above, it is even the Law that the Court can accord the status of a legal personality on an entity where as in this case, the Law creating the body or office made no provision regarding whether it can sue or be sued or whether it can even own property. See Thomas vs. Local Government Service Board (1965) 1 ALL NLR 168. It has been stated that the 2nd and 4th Appellants are a creation of statue. See section 218(2) of the 1999 Constitution as Amended sections 4(2)(d), 7(2)(a), 8(1)(b) 18(2)(a), third schedule, section 291(1) (Interpretation of Commanding Officer of the Armed Forces Act LFN 2004 A. 20. In the case, according to Learned Appellants’ Counsel, (the 2nd and 4th Appellants) Appellants are vested with public functions with the command, administration and general superintendent of Eburutu barracks of their respective units.
It is part of the affidavit evidence that the 4th Appellant while going round to carry out inspection of the entire Eburutu barracks on the 27th day of March, 2010 as part of the injury complained of by the Respondent according to paragraph 11 of the Appellant Counter-affidavit on page 48 of the Record of Appeal. Learned Respondent’s Counsel then urged the Court to hold that the 2nd and 4th Appellants are persons and can sue or be sued and to resolve this issue in their favour. As earlier on stated in the course of this judgment, it is even the law that the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect, In Nkporinwi vs. Ejire (supra) the Court held that:
“It is well settled principle of Law that the major jural entities or units to which the Law usually ascribes legal personality are:
I. Human beings (Natural Persons).
II. Companies incorporated under the various companies Acts.
III. Corporation sole with perpetual succession.
IV. Trade Unions
V. Partnerships and
VI. Friendly societies
Undoubtedly, the list of the said categories of legal personae is not exhaustive. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that list if the justice of any given case so dictates. So I do not seem to agree with the learned Appellants’ Counsel’s Submission that unless the offices of the 2nd and 4th Appellant are said to be of perpetual succession with a common seal and the powers to sue and to be sued, they cannot be ascribed the status of a juristic person or persons. In the case of Fawehinmi vs. NBA (Supra) Oputa JSC (of blessed memory) drew three distinctions from the celebrated case of Thomas vs. Local Government Service Board (Supra) like the Local Government was created by the Customary Law. Secondly, where the body or office is charged with the discharge of public functions and thirdly, where there is a nexus between the statutory functions and the injury complained of. The third one falls on all four walls with the issue at stake in this appeal. It is therefore my humble view that the 2nd and 4th Appellants are juristic persons in Law that are capable to sue or be sued in their various capacities. In consequence therefore, I shall and hereby resolve issue number one above in favour of the Respondent and hold that the learned trial judge was right in holding that the 2nd and 4th Appellants are juristic persons.
On issue No.2 i.e. whether or not the 1st- 4th Appellants are vicariously liable for the act of the 5th Appellant. According to Learned Appellants’ Counsel, the Learned trial Judge was wrong in arriving at the conclusion that the 5th Appellant is an agent of the 1st to 3rd Appellants when as a matter of fact, the 5th Appellant clearly stated in his Counter-affidavit that he was not an agent of any of the Appellant, joined as a party to this suit. This is so because the Learned trial Judge refused to make reference to the Appellants Further and Better Affidavit and the supporting written submissions and in particular where it was argued forcefully for the Appellants that the 5th Appellant was not a servant or agent of the 1st to 3rd Appellants. Learned Counsel therefore submitted that the Court should not hold that 1st, 2nd and 3rd Appellants are responsible for the conduct of the 5th Appellant because the 5th Appellant is on a frolic of his own. He cited the authorities of Osigwe vs. PSPHS Management Consortium Ltd. (2009) ALL FWLR pt. 470, page 607 and Volcan Gases Ltd. vs. G.F.I.G (2001) FWLR pt.53 Page 1 on the definition of agency. In view of the above, he urged the Court to resolve this issue in favour of the Appellants.
On the other hand, the Respondent submitted that the learned trial judge was right when he held that the 5th Appellant is an agent of the 1st – 4th Appellants and therefore vicariously liable for the conduct of the 5th Appellant.
According to Counsel, whether the relationship of agency exist in law in any situation does not depend on what the parties may state in their affidavit nor on the precise terminology employed by the parties to describe their relationship, but on the nature of the agreement or the exact circumstances of the relationship between the alleged principal and agents. See Osigwe vs. PSPLS Management Consortium Ltd. & Ors (2009) ALL FWLR pt 470, page 607, Niger Progress Ltd. vs. North East Line Corporation (1989) 4 SCNJ 232. He therefore submitted that the exact circumstances of the relationship existing between the 1st to 4th Appellants and the 5th Appellant is a relationship of agency. See Iderima vs. Rivers State Civil Service Commission (RSCSC) ALL (2005) FWLR pt 285, page 431.To demonstrate the agency relationship, the Learned Respondent Counsel stated that the 1st Appellant is created under section 147(1) of the 1999 Constitution and is vested with the responsibility and Administration of Government business in the Ministry of Defence, according to Section 148(1) of the 1999 Constitution.
The 2nd and 3rd Appellants are also created and appointed under Section 218(2) of the 1999 Constitution while the Chief of Defence Staff (3rd) is vested with the day to day command and general superintendent of the Armed Forces which comprise the Army, Navy and Air force. The Chief of Army Staff (2nd Appellant) is vested with the command over the Army as per sections 7(1), 7(2)(a) and 18(1)(2) and (3) of the Armed Forces Act LFN 2004 Cap A.20. The 4th Appellant referred to as commanding officer under S.291(1) (Interpretation section) of the Armed Forces Act 2004 Cap A. 20 is the officer commanding the unit to which the person belongs. He is delegated with the command, direction and superintendent of the unit to which he is appointed by the 2nd Appellant who is vested with the general overall command, direction and superintendence of the Army. He the 4th Appellant who is also the 5th (Appellant) is entrusted with the business of the 1st-3rd Appellants in his unit and is authorized to act for them and on their behalf. The 4th Appellant is authorized by the 2nd Appellant to act for him. Learned Counsel then submitted that the 5th Appellant who is also the 4th Appellant was not on a frolic of his own when he instructed or ordered an officer to lock up the Respondent, the subject matter at the lower Court. Therefore and arising from the above, Learned Counsel urged the Court to resolve the issue that the 5th Appellant is an agent of 1st-4th Appellants and therefore vicariously liable. The 5th Appellant is vicariously liable and the Court should so resolve issue No. 2 in their favour.
The Supreme Court of Nigeria per Edozie JSC in Idorima vs. Rivers State Civil Service Commission (2005) ALL FWLR pt 285, page 431 for purposes of vicarious liability indentified three categories of employment:
I. A pure master and servant relationship.
II. Employment where office is held at pleasure.
III. Employment protected by statute.
In determining whether a servant or employee is under vicarious liability, Lord Denning adopted a useful alternative to the control test, one which is or in keeping with the realities of modern business. See Steveson, Jordan and Harrison Ltd. vs. Macdonard & Evans Ltd. (1952) 1 LTR 101 at 111 where it was held thus:
“Under a contract of service a non employed as part of a business and his work is above as an integral part of the business whereas under a contract for service, his work, although done for the business is not integrated into it but is accessory to it.”
The 5th Appellant’s work is done as an integral part of the Nigerian Army and not as accessory to it. Against the background of the above and considering the argument professed by both parties in respect of this issue No. 2, I find as a fact and hereby hold that there is an agency relationship between the 1st-4th Appellants which also extends to the 5th Appellant. That agency relationship makes the 1st -4th Appellant vicariously liable to the act of the 5th Appellant. The order issued by the 5th Appellant to lock the Respondent in the guardroom was made while he was undergoing routine control and superintending of the Eburutu barracks as an agent of the 1st- 4th Appellants. The relationship of agency where it exists in Law does not depend on what the parties may state in their affidavit evidence as in this particular case nor on the precise terminology employed by the parties to describe their relationship, but on the nature of the agreement on the exact circumstance of the relationship between the alleged principal or agents. Having held that the relationship of the 5th Appellant is that of an agency relationship, therefore 1 resolve issue No. 2 in favour of the Respondents.
On issue No. 3 i.e. whether in the circumstances of this case, the Appellants can be heard to say that they were denied fair hearing in the Court below. Fair hearing within the meaning of Section 36(1) of the 1999 Constitution as amended means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It encompasses not only compliance with the rules of natural justice but also audi alteram partem. It also entails doing in the trial whether civil or criminal trial all the things which will make an impartial observer leave the Court room to believe that the trial has been balanced and on side of the trial. See Alhaji Ishiaku Mohammed vs. Kano N. A. (1968) 1 ALL NLR 424; 1 ANLR 411 where Ademola CJN stated inter alia as follows:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. The true test of a fair hearing, it was suggested by Counsel, is the impression of a reasonable man who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this”
See also Ntukidem vs. Oko (1986) 5 NWLR Pt.45, Page 909 (1989) 12 sc 126, (1986) 17 NSCC 1303. Tunbi v. Opawole (2000) 4 WRN 44 (2000) 2 NWLR Pt.644, Page 275, (2000) 1 SC 1.
And so, to determine the merit of the present issue at stake, it is necessary to consider the facts, circumstances and the peculiarities of this case. See Magaji vs. The Nigeria Army (2008) All FWLR pt 420 page 603. A look at the record of proceedings of what transpired in court could be seen as follows and shown on pages 99 – 101 viz:
“The Applicant Mrs. Etta Bassey Ephraim, through her Counsel W.S. Ogar Esq. of Esu and Associates filed this Fundamental Rights suit vide a Motion on Notice on 21st November, 2010 for the Enforcement of her Fundamental Right pursuant to Order 2 Rules 1-5 of the F.R.E.P.R. 2009. It is supported by an affidavit of 24 paragraphs, Exhibits BC1 and BC2, statement with reliefs sought and grounds as well as a written address. The application was served on the Respondents on 19th November, 2010 by Okon Willie Akpan, a bailiff of the Federal High Court, Calabar they filed no papers in response.
On the 22nd November, 2010 when the matter came up for the first time, the Court did not sit due to an official assignment and adjourned to 6th December, 2010 with consent of both Counsel W.S. Ogar and PSC Agada. Again, due to the absent of the Respondents on 6th December, 2010, this suit was further adjourned to 18th January, 2011 for definite hearing of the substantive Application.
At the resumed hearing of the suit on 18th January, 2011, Applicant’s Counsel moved the substantive Application on 2nd November, 2010 relying on his Court processes filed herein. After Respondents’ Counsel ONATE Esq. application for another adjournment was refused by this Court. ONATE Esq. confirmed service on them but filed no Counter-affidavit and written address in opposition.
Subsequently, ruling was fixed for 28th January, 2011 after listening to Counsel and adoption of the written address by applicant’s Counsel W.S. Ogar on the 28th January, 2011 fixed for Ruling. PSC Agada referred the Court to a Motion dated 21st January, 2011 as well as his preliminary objection duly served on the Applicant’s Counsel W.S. Ogar filed a counter affidavit in response on the 27th January, 2011. W.S. Ogar requested and was given five days to file more Court processes in response. This suit was again adjourned to 10th February, 2011 for adoption and address by Counsel.
On 10th February, 2011, this Court after listening to arguments of counsel for the parties granted Respondents’ Motion dated 21st January, 2011 and filed on 23rd January, 2011 to regularize their papers to enable them be heard in this Court refused leave to PSC Agada & Co to withdraw their appearance for the 1st – 3rd & 5th Appellants. Counsel adopted their written addresses, preliminary objection and other Court processes filed herein on the 1st February, 2011 and fixed for ruling for 25th February, 2011 and later 28th February, 2011 after PSC Agada referred to their counter-affidavit letter and further affidavit and written reply filed…”
I have taken pains to produce part of the Court’s Ruling on this matter to enable this Court to see if the allegation of denial of fair hearing can be substantiated. Also to see if the lower Court heard the matter before the expiration of the statutory period allowed by the rules.
From my consideration of the numerous pieces of adjournments granted by the Court, it appears to me quite rightly that the lower Court discharged its duty of creating an avenue of fair hearing to all the parties in the suit. Even the Appellant benefitted from that discretion exercised by the Court in affording to all the parties an opportunity of being heard in the matter. The Appellant cannot at this eleventh hour of the case be heard to complain that the lower Court heard the matter before the time allowed by the Rules. Even until the matter went to its conclusion, the Appellant was part and parcel of the case and also took part in all the stages of the proceeding without complaining. See the case of Newswatch Communication Ltd. vs. Atta (2006) ALL FWLR Pt. 318 Page 580 at 60, where per Niki Tobi JSC held as follows:
“It is the duty of the Court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes an advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him of fair hearing. That is not fair to the Court and Counsel must not instigate his client to accuse the Court of denying him fair hearing.”
For the lower Court to have done more than what it did would amount to the Appellant riding the willing horse to death.
Order 11 Rule 6 of the Fundamental Rights( Enforcement Procedure) Rules 2009 stipulates thus:
“Where the Respondent intends to oppose the Application, he shall file his written address within 5 days of the service on him of such Application and may accompany it with a counter-affidavit.”
Service of processes was effected on the Appellant on the 19th November, 2010 by Okon Willie Akpan, a bailiff of the Federal High Court, Calabar. Even their Counsel Onate Esq. acknowledged service of processes as could be seen on page 100 of the Records of Proceedings at the lower Court.
At this juncture it may be pertinent to ask the same question posed by the Respondent on page 15 of the Respondent’s Brief of Argument to wit:
“The question now is, can the Appellants after participating in the entire trial without complaint up to the stage of ruling with the fact of service by the bailiff and confirmation of service by the Appellants’ Counsel turn round to complain of service or lack of fair hearing? The answer is not far fetched in the legal parlace.”
In Chief Fawehinmi vs. NBA (No.1) (2004) 40 WRN 72, (1989) 4 SCNJ 1, (1989) 2 NWLR Pt.105 page 494, the Supreme Court of Nigeria per Tobi JSC held that:
“If an objection is not radical and does not go to the essence, like jurisdiction, as opposed to mere formal objection, then such an objection must be raised at the earliest opportunity, otherwise, the party objecting, by failing to do so on time may be deemed to have accepted the state of things as it was and may otherwise be stopped by his conduct from raising the objection in a future date.”
See also Buhari vs. INEC (2009) 7 WRN 1. On the basis of all the above, I hereby resolve this issue in favour of the Respondent and hold that the Appellants had hitherto submitted themselves to the jurisdiction of the lower Court. They cannot be held to complain at this stage that they were not offered an opportunity of fair hearing. Issue No. 3 is hereby resolved in favour of the Respondent.
Issue No. 4: whether the trial judge was not wrong when he refused to consider the defence of the 1st – 3rd Appellants that they were not served with the originating processes as provided by the enabling Law.
The Appellants were duly served as contended by the Respondent. According to them, if it were that the Appellants were not served with the Court processes, how come it that they were able to brief PSC Agada of Counsel as the originating process to be served in a proceeding. I do not therefore believe the assertion of the Appellants that they were not served any processes in this suit. I rather believe the Respondent that they were served and with the processes they briefed Learned Counsel to handle the matter for them. As well, there is a proof of service as evidence by an Affidavit of Service. So it cannot be said that the Learned trial Judge refused to consider the defence by the Appellants that they were not served. The authority of NEPA vs. Uruakpa (2011) ALL FWLR pt.566, page 476 does not apply to this case as there is proper evidence of service, and accordingly, I resolve this issue in favour of the Respondent.
Issue No. 5: whether the Learned trial Judge was not wrong when he held that failure of the Respondent to contradict by affidavit evidence of the soldier who was ordered by the 5th Appellant to match the Respondent out of the barracks including the affidavit evidence of the Regimental Sergeant Major (RSM) and the three other officers mentioned by the 5th Appellant was fatal to the case of the Respondent. This is a case of the Fundamental Rights (Enforcement Procedure) Rules whereby all evidence required is by affidavit evidence. The 5th Appellant in paragraph 22 of his Counter-affidavit filed on the 25th January, 2011 mentioned the names of the Regimental Sergeant Major, and other three officers but failed to produce any such affidavit of them. The affidavit evidence of these alleged eyewitnesses to the act could have been of great assistance in assessing the affidavit evidence by the 5th Appellant. And so the learned trial Judge was not wrong when he held that failure of the 5th Appellant to contradict by affidavit evidence that the soldier who was ordered by the 5th Appellant to match out the Respondent from the barracks and which later landed her in the army guard room.
In consequence therefore, I resolve this issue in favour of the Respondents. See 149(d) of the Evidence Act 2004 A.I.G Adamawa State vs. Wale (2006) 1 SC Pt. 11, page 107.
Issue No.6: whether an award of N60,000,000.00 (Sixty Million Naira) and N60,000.00 (Sixty Thousand Naira) only as damages and cost respectively are excessive in the circumstances of this case. This Court is therefore called upon to consider the peculiar circumstance of this case and ascertain if the award of the various amounts are adequate. In response to this invitation, it must be noted that an award of damages is an exercise of discretion by the trial Court. An Appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include:
I. Where the exercise of discretion by the trial Court is perverse.
II. Where the Court acted under wrong principles of Law or
III. Where the Court acted in disregard of Applicable principles or
IV. Where the Court acted in misapprehension of facts or
V. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
VI. Where injustice will result if the Appellate Court does not act or
VII. Where the amount awarded is ridiculously high that it must have been an erroneous estimate of the damages.
See Zicks Press Ltd. vs Ikoku (1951) 13 WACA 1988, Idahosa vs. Oronsaye (1959) SCNLR 407, (1959) 4 FSC 166, Balo vs. Bankole (1986) 3 NWLR Pt. 27, Page 141, Elf Nig. Ltd. Vs. Sillo (1994) 6 NWLR Pt.350, Page 258 (1994) 19 LRCN 153, Ahmed vs. CBN (2013) 47 WRN 51, Arab Contraction Ltd. & Anor vs. Asuquo Sunday Isaac (2013) 5 WRN 57, Balogun vs. Labaran (1988) 3 NWLR Pt.80, Page 66, Ogu vs. Ihejirika (1991) 4 NWLR Pt. 185, Page 488, Int’l Messengers Nig. Ltd. Vs. Pegafor Ind. Ltd. (2005) 15 NWLR Pt.947, Page 1 (2005) 5 SCNJ 120, Okolo vs. Dakola (2006) 47 WRN 1, (2006) 14 NWLR Pt.1000 Page 401, (2006) 7 SCNJ 2988, (2006) ALL FWLR 401.
It appears that the instant case at hand falls under the last category of the circumstances above mentioned i.e. that the lower Court awarded damages alleged to be ridiculously high according to the Appellants. The Learned trial judge awarded N60,000,000.00 (Sixty Million Naira) and Sixty Thousand Naira (N60,000.00) respectively against the Appellants jointly and severally as damages and cost in that the 5th Appellant Lt. Col. K.N. Garba on the 27th March, 2010 ordered the arrest and detention of the Respondent at the military guardroom of 146 Battalion Eburutu barrack, Calabar for eight hours without any legal justification.
The primary object of the award of damages is to compensate the Plaintiff for the harm done to her. The secondary object of an award of damages is to punish the defendant for his conduct in inflicting harm. This secondary object can be achieved by awarding in addition to the normal compensatory damages, exemplary, punitive, conductive (sic) retributory damages. I think that it is because of the above that the lower Court made the award of damages herein before mentioned.
I am therefore not oblivious of the principle applied to appeals on quantum of damages. The Law is sacrosanct that Appellate Courts are generally very much reluctant to exercise their power and attempt to reassess the amount of damages which the trial Court had awarded. See His Highness Uyo 1 vs. Egware (1974) 1 ALL NLR (pt 1) 293, Ziks Press Ltd. vs. Ikoku (1951) 13 WACA 188. In the instant case, it is clear and apparent that the Learned trial Judge in his consideration and conclusion on the issue of this head of award proceeded on a wrong principle of Law and for a mere eight hours arrest and detention at a military guardroom at 146 Battalion Eburutu barrack, Calabar awarded such colossal sums of money as damages and cost. Whether with other military criminals or not in the military guardroom, an award of N60,000,000.00 (Sixty Million Naira) for damages and Sixty Thousand Naira (N60,000.00) as cost is very much on the high side to say the least. The authority of His Highness Uyo 1 vs. Egware (Supra) is a very good authority for the proposition that an Appellate Court is entitled to interfere with an award of damages made by a judge of a lower Court where circumstances call for it as in the instant case.
In view of the above therefore and in view of other persuading decisions of this court, I am of the candid opinion that the award of N5,000,000.00 (Five Million Naira) and N20,000.00 (Twenty Thousand Naira) only in favour of the Respondent will meet the justice of this case as damages and cost respectively.
Consequently, I hereby set aside the award of Sixty Million and Sixty Thousand Naira respectively as damages and costs. And so, this issue whether the award of N60,000,000.00 and N60,000.00 as damages and costs respectively against the Appellants jointly and severally are not excessive is hereby answered in the positive and resolved against the Respondent in part.
On the whole, I find all the six issues discussed resolved against the Appellants. The appeal therefore lacks merit and is hereby dismissed. I assess and fix cost at N50,000.00 in favour of the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Paul Obi Elechi, JCA, made available to me a draft copy of the lead Judgment in this appeal. The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and conclusion; which I adopt as mine. I will only make few comments on the powers of an appellate court to interfere with an award of damages made by a trial court.
It is settled that an appellate court may interfere with the award of damages made by a trial court. The principles upon which this may be done have been established in a number of judicial authorities. In Williams v. Daily Times (1990) 1 NWLR (Pt.124) 1, (1990) 1 S.C. 23, (1990) LPELR-3487 (SC), the Supreme Court listed the guiding principles as follows:
1 . That the trial Judge acted on a wrong principle of law.
2. That the Judge made an estimate of damages which is entirely erroneous, that is which no reasonable tribunal would have made.
3. That the appellate court is not disturbing the award of damages merely on the ground that it would have come to a different figure had it heard the case itself.
The appellate court is bound to intervene and set aside or reduce or vary in whatever manner once the Appellant is able to show that the award was arbitrary, excessive, erroneous or that there was a wrongful exercise of discretion; David-West v. Oduwole (2003) 12 NWLR (Pt.835) 682, (2003) LPELR-10266 (CA).
The award of N60,000,000.00 in the circumstances of this case where the Respondent was detained for eight hours in a military guardroom was indeed arbitrary and excessive. The Appellate Court may interfere with the award in this circumstance. See also Section 16 of the Court of Appeal Act, 2004. I therefore resolve this issue in favour of the Appellants.
For the more comprehensive reasons given in the lead Judgment, other issues raised for determination are resolved against the Appellants. I abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH JUDE JELLA, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. I agree with his reason and conclusion.
Appearances
R.A. Manga Esq.For Appellant
AND
P.S.C. Agada Esq.For Respondent
