MR. ALARAPON v. CHIEF NIYI OMOTARA & ORS
(2019)LCN/12522(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/AK/69/2014
RATIO
COURT AND PROCEDURE: POWER TO AWARD COST
“It is trite law that the power to award or refuse to award cost is entirely at the discretion of the Court. But like all discretion it must be exercised judicially and judiciously. See the case of NBCI & ANOR V ALFIJIR (MINING) NIG. LTD (1999) 14 NWLR, PT. 638, 176. It is also settled law that a Court cannot award what was not asked for. The counsel to the 1st respondent is misconceived when he argued in his brief and equated award of cost with ancillary reliefs. They are not the same. And even if they are the issue of ancillary relief does not apply to the 1st respondent who filed nothing and so has no relief before the Court upon which the Court can make an order for ancillary relief. I find on the authority of KACHALLA V BANKI & ORS (2006) 8 NWLR PT 982, 364, that the Court will not award what was not asked for. See also the case of ETAJATA & ORS V OLOGBO & ANOR (2007) 16 NWLR, PT 1061, 554. It was therefore wrong for the trial Court to have awarded N50,000 costs in favour of the 1st respondent and I so hold.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MR. ALARAPON Appellant(s)
AND
1. CHIEF NIYI OMOTARA
2. MR. OLAIYA ADEBAYO
3. COMMISSIONER OF POLICE (ONDO STATE) Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment):
The appellant, MR. Alarapon Kolapo was an applicant in the Court below before Hon. Justice I. A. Adegbenro. He went to the Court via a motion on notice for the enforcement of his fundamental rights. He sought the following reliefs from the Court:
a) A declaration that the arrest, detention of the applicant, the seizure and detention of his properties between 28th October 2012 and 2nd November 2012 by the respondents in the custody of the 2nd and 3rd respondents at the Nigeria Police Station ‘A’ division, Akure Ondo State is unlawful, illegal, unconstitutional, null and void for being contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
b) The sum of N10 million damages for the illegal arrest and detention of the applicant and his properties as aforesaid.
c) An order compelling the respondent to release the applicant’s properties to him such as deep freezer, television, generator, DVD cassette player, 3 stabilizers, audio DVD cassette player, laptop, table gas and N20,000 which were illegally seized from him since 28th October, 2012.
The contention of the appellant in the lower Court is that he is a business man and a contractor. That sometimes in 2012, one Babajide Omolara, his brother in law who lives in South Africa employed his services to develop a plot of land for him in Akure. That pursuant to this engagement the said Babajide Omolara paid him the sum of N467,000 (Four Hundred and Sixty seven Thousand Naria) in instalments into his account. That the money paid by the said Babajide Omolara was for the procurement of survey and building plan, clearing of land, digging of well and molding of some blocks. The appellant further continued that the 1st respondent who is the father of the said Babajide was not present at the transaction and when the monies were paid into the appellant’s account. That the 1st respondent even though not a party to the contract between the Appellant and the said Babajide instigated the 2nd and 3rd respondents to arrest and detain the appellant at the Nigeria Police Station `A` Division, Akure. That the appellant was beaten and tortured while naked by the IPO in charge of the matter. That the appellant was released on bail after he had been humiliated and dehumanized. The appellant also contended that his properties as itemised under relief (c) of his claim were seized by the 2nd and 3rd Respondents and are still in their custody. This formed the basis of the appellant’s action in the lower Court.
The appellant’s motion was supported by a verifying affidavit, a statement and a written address. It was also accompanied by a further and better affidavit with six annexures marked as Exhibits A1 to A6. The 1st respondent did not file any process in the lower Court in reaction to the appellant’s claim. The 2nd and 3rd respondents however filed a counter affidavit and written address. The counsel to the appellant moved their application and the counsel to the 2nd and 3rd respondents responded to same. In a considered judgment delivered on the 10th day of December, 2013, the learned trial judge dismissed the appellant’s claim in its entirety and ordered a heavy cost against him in favour of the respondents.
Dissatisfied with this judgment, the appellant by a notice of appeal dated the 6th day of January, 2014 but filed in the Court below on the 07/01/2014 appealed to this Court on five grounds as follows:
1. The learned trial judge erred in law when he held that the situation has arisen to make recourse to the Ondo State High Court (Civil Procedure) Rules, 2012 from that lack of precise provision in the fundamental Rights (Enforcement Procedure) Rules, 2009 in whether or not the 2nd and 3rd are exempted from paying filing fees and how they are exempted from paying same at pages 21 – 22 of the 2nd ground.
PARTICULARS OF ERROR
1. The learned Trial Judge misconstrued provision Order XV Rule 4 of Fundamental Rights (Enforcement Procedure) Rules 2009 without aver the mind of the Court to the effect that the provision only means in the Course of enforcing Rights proceedings and not on the payment of filing fee.
2. The Trial Court failed woefully to aver its mind to the fact that the Fundamental Rights (Enforcement Procedure) Rules 2009 is a special procedure meant to protect and enforcing the right of the oppressed and not otherwise.
3.The learned Trial Judge failed to aver His mind that the Rules (Fundamental Rights) enforcement procedure are means to protect the right of the applicant and not to deprive him or cause more hardship to Him.
4. The Trial Court failed to aver its mind to the fact that the Fundamental Rights (Enforcement Procedure) Rules 2009 is a special procedure that other Civil Procedure Rules applicable is not applicable to same.
5. The learned trial judge erred in law when the Court award cost of Fifty Thousand Naira (N50,000) only for the 2nd & 3rd Defendants when there is no such relief sought by the Respondents.
PARTICULARS OF ERROR
1. The learned trial Judge failed to avers His mind to the fact that the 1st Respondent did not file any processes to controvert the assertion of the Applicant and yet the trial Judge award the sum of Fifty Naira (N50,000) he did not asked for.
2. The learned trial Judge failed to avers His mind to the all the processes filed by the 2nd & 3rd Respondents including that self contradictory Exhibits and yet the trial judge went ahead to award the sum of Fifty Thousand Naira (N50,000) against the Applicant but infamous by the 2nd & 3rd Respondents jointly and severally.
3. The trial Court failed to consider the 18 paragraphs Counter affidavit of the 2nd & 3rd Respondent, their self contradictory Exhibits A, B, B1, B2, D, H ad H1 and yet ordered cost of Fifty Thousand Naira (N50,000) to the 1st Respondent who did not file any process to controvert the affidavit evidence of the Applicant and yet same influences the decision of the trial Court in awarding the sum of Fifty Thousand Naira (N50,000) in favour of the 2nd and 3rd Respondents and whereas they did not asked for same in their relief.
3. The learned trial judge erred in law when he held at page 22 – 25 of the judgment that the fact was clearly established that this applicant took a total sum of One Million, One Hundred and Thirty One Thousand Naira (N1,131,000.00) only for the purpose of building a house for one Babajide and held that the Application of the Applicant does not deserve any sympathy, hence his Application dismissed.
PARTICULARS OF ERROR
1. The trial Court failed to consider the Applicant’s uncontroverted statement, affidavit, further and better affidavit, his written address and exhibits that primed the ownership of this properties seized by the Respondents and yet dismissed this Applicants application.
2. The Trial Court failed to aver its mind to the Exhibit A which is the Police extra-judiciary which says that one Gbenga Omotara came to report the matter as about 1330 hours of 29/10/2012 and whereas the extra judicial statement of the said Gbenga Omotara now Exhibit ‘B’ indicate that he made report at the station at about 11:30 am of 29/10/2012 meaning that he had made his statement with the 2nd & 3rd Respondents before making an official report and yet the trial Court did not read a mixed up and self-serving statements of the maker of Exhibit B and the Police extract Diary now Exhibit A.
3. The trial Court failed to consider the contradictory contents in the Exhibit A, B, B1, B2, D, H1 and H2 that shows malice of the maker and yet believe in the contacts, hence His dismissed of the Applicant’ application.
4. The trial Court failed to aver its mind to the self-contradictory contents in the Exhibit B, B1, and B2 which are pari-materially differ to each other and yet the Court dismissed the Application’s application with cost.
5. The Court below failed to consider the content of exhibit which he said, that the applicant borrowed the sum of Fifty Thousand Naira (N50,000) only from him in 2010 and yet the Court believe the counter affidavit of the 2nd & 3rd Respondents and same influence the decision of the trial Court in dismissing the Applicant’s application.
6.The trial Court failed woefully to consider the Exhibit H and H1 which was the solely evidence the Respondents relied upon as evidence of given the sum of One Million, One Hundred and Thirty One Thousand Naira (N1,131,000.00) only and whereas there is no such material evidence of such money being paid to the Applicant?s and yet same influence the decision of the trial court in dismissing the Applicant application and the award of cost against him but in favour of the Respondents.
7.The trial Court failed to evaluate of affidavit evidence of the parties and the exhibits attached and this influence the trial Court in wrong decision.
8.The trial Court failed woefully to consider the Exhibits H & H1 which only show only Two Hundred and Sixty Thousand Naira (N260,000) only was paid to the Applicant on 18/6/2009, 26/10/2009.
9. The trial judge erred in law when he held that the arrest and detention of the Applicant is lawful and does not give rise to damages when there is no material affidavit evidence to justify the Respondents action.
PARTICULARS OF ERROR
1. The trial Judge failed woefully to give proper evaluation to the affidavit evidence and its attached exhibits before he came into wrong decision.
2. The trial Court failed to avers its mind to the compelling contradictory Exhibits A, B, B1, B2, D, H and H1 of the 2nd and 3rd Respondents and yet same influence His decision to arrive at a wrong conclusion in Page 23 of the judgment.
3. The Trial Judge failed woefully to consider the Applicant’s uncontroverted further and Better Affidavit and the attached Exhibits A-A6 and yet arrived at wrong decision.
4. The Trial Court failed to avers its mind to the fact that the Exhibits A – A6 attached with the applicant’s further and better affidavit in response to 2nd & 3rd Respondents counter affidavit which beanies that the properties seized have been bought by this Applicant ling before the transaction between the said Omotara Babatunde Emmanuel and yet arise at a wrong decision of Pages 23 – 44 of the judgment.
5. The trial Court failed to aver His mind to the fact that the sized of the sum of Twenty Thousand Naira (N20,000) from the applicant along side other properties is a total violation of his right.
6. The learned trial judge erred in law when He held that he agreed with the submission of the counsel to 2nd & 3rd Respondents in tot not to release the properties of the Applicant seized back to him because the said properties are to be tendered at the Criminal trial of the Applicant, thus the rule of tracing in equity prevent him to make order for the release of same.
PARTICULARS OF ERRORS
1. The learned Trial Judge failed woefully to consider the further and better affidavit of the Applicant and the Exhibits A – A6 attached and this influence His wrong decision.
2. The Trial Judge failed to avers His mind to the dates bore in the said Exhibits A – A6 attached with Applicant’s further and Better affidavit which shows that the properties seized had been acquired many years before transaction complained of by the 1st Respondent and His cohort and yet this influence this Trial Judge to arrive at a wrong decision.
3. The trial judge failed woefully to aver His mind to uncivilized seizure of the sum of Twenty Thousand Naira cash from the Applicant which the Respondents could not lay claim to part of the money advanced to him and yet arrived at a wrong decision.
Whereof the appellant sought an order of this Court setting aside the judgment of the lower Court and an order releasing the properties and the sum of N20, 000 only seized from the applicant.
In prosecuting this appeal, the appellant filed a brief of argument on the 13th day of February, 2015. In it, the appellant raised five issues for the determination of the Court as follows:
1.Whether the Trial Judge misdirected himself in law to have had recourse to Order 45 Rule 11 of Ondo State High Court (Civil Procedure) Rules 2012 when there is adequate provision in the Fundamental Right (Enforcement Procedure) Rules 2009 that governed this proceeding.
2. Whether the Trial Judge was right to have dismissed the Appellant’s case and refused to order the release of his properties illegally seized but rather held that the Respondents have proved that the sum of One Million, One Hundred and Thirty-One Thousand Naira (N1,131,000.00) was given or transferred to the Appellant’s account with U.B.A, Akure branch when the 2nd & 3rd Respondents had obtained the Appellant statement of account and no such money was noticed or seen there.
3. Whether or not the award of N50,000.00 cost to each of the Respondents and the award of general damages by the Honourable trial Courts is justifiable
4. Whether the Trial Judge was not wrong in law to have granted the relief not sought for by the Respondents.
5. Whether the Trial Judge was right to have held that the detention and the seizure of the Appellant and his properties are lawful and did not give rise to any damages.
In arguing the appeal, MR. M.A Fadunmoye of counsel for the appellant who also settled the brief adopted same as his legal arguments in support of the appeal. Counsel also adopted his replies to the briefs of argument of the 1st respondent filed on the 19th February, 2018 but was deemed on the 18/10/2018 and of the 2nd and 3rd respondents filed also on the 19th February and deemed also on the 18th October, 2018 respectively.
The brief of the 1st respondent was settled and adopted by Mr. S.P Ashidi of counsel as his legal arguments in opposition to the appeal. In it, counsel responded to only issue (3) as raised by the appellant. According to counsel, this was the only issue that pertained to the 1st respondent.
The brief of the 2nd and 3rd respondents was settled and adopted by MR. Aderemi Ajibola of counsel. In it, counsel raised four issues for the determination of the Court, namely:
1.Whether the trial Court was not right in his (sic) judgment when he (sic) had recourse to Order 45 Rule 11 of the Ondo State High Court Civil Procedure Rules, 2012 as regards the 2nd and 3rd respondents who are Government department/agencies/agents from paying filing fees and whether Fundamental Rights Enforcement Procedure Rules, 2009 can be read in isolation of the provisions of other laws most especially as regards to the rules of Court where the case is determined.
2. Whether the trial Court was not right to have dismissed the Appellant?s case and whether the appellants properties were not seized in the course of the investigation of the alleged criminal case against him when it was alleged that the proceeds of the fraudulent conversion was used to buy those properties and equip his house and whether those properties were illegally seized and whether it was all the money involved that were paid through the U. B. A. Akure as alleged by the appellant.
3. Whether the trial Court was not right when he awarded cost of N50,000.00 jointly and severally to the 2nd and 3rd respondents and whether the grant of cost is not at the discretion of Court and whether cost could be termed as a relief not sought for.
4. Whether the trial Court was not right to have held that the detention of the appellant and that of the appellant’s properties recovered during the course of the investigation of the alleged criminal cases against the appellant are lawful and thus, dismiss his application.
I do not deem it expedient in considering this appeal to summarize the arguments raised by all the counsel in this appeal. The obvious reason is that the matter from which this appeal arose was an enforcement of fundamental rights issue which was decided only on affidavit evidence. I cannot fathom the reason for the verbose 21 page 12 font single spacing brief of the appellant and the 25 page 12 font single spacing brief of the 2nd and 3rd respondents. The appellate Court is not the place to be verbose. The real issues are settled in the trial Court. It is trite that no matter how beautiful an address is, it cannot take the place of evidence. I think it is useful if counsel remember that the address is only an aid. If it becomes too cumbersome, it may become a burden rather than an aid. This is especially so as the decision of this Court will be based essentially on the records of the trial Court.
The other issue which I feel compelled to comment on right away is this issue of respondents raising issues for determination when they have not cross appealed. The settled position of law is that issues for determination should be distilled from grounds of appeal to be valid. And any ground of appeal from which no issue is distilled is deemed abandoned. It is therefore logical that the only business of a respondent who has not cross appealed is to respond to the issues raised by the appellant. This is important for the respondent so that he does not concentrate on answering issues raised by him and fail or neglect to respond adequately to issues raised by the appellant especially if the issues are different.
Having made these observations, I will determine this appeal on the issues raised by the appellant. If it is necessary I will summarize the submissions of counsel, otherwise I have read the submissions and they are as contained in their briefs as adopted.
Issue (1) is whether the trial judge misdirected himself when he had recourse to ORDER 45(11) of the ONDO STATE HIGH COURT (CIVIL PROCEDURE) RULES 2012 in this matter. The rule provides as follows:
“No fees are to be taken in respect of any proceedings where such fees would be payable by any government Department.”
ORDER XV (4) of the FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009 on the other hand provided that:
“Where in the course of any human rights proceedings, a situation arises for which there is or appears to be no adequate provision in these rules, the civil procedure rules of the Court for the time being in force shall apply.”
There is no doubt that the 2nd and 3rd respondents, the Nigerian Police is a government department. There is also no doubt that there is a gap in the Enforcement Procedure Rules in respect of exemptions for payment of fees. It is my humble view that the obvious interpretation, which is so elementary is that taken by the Court. It is unbelievable that counsel to the appellant should take this position and dwell so much on it when it has no direct bearing on his case. Perhaps counsel has not looked at the fact that a Court is guided not only by its rules but also by its practice. It is the practice of the Courts all over Nigeria that Government departments/agencies do not pay filing fees. Even in the absence of ORDER 45(11) it would have been perfectly competent for the trial Court to have relied on its practice and validated the 3rd respondent’s process without payment of filling fees. Counsel?s argument is at best peasantry and it is the learned counsel rather than the Court that is misconceived. I discountenance the arguments of learned counsel on this issue. I resolve same against the appellant and in favour of the respondent.
Issues two and five are the same and would be taken together. These are whether the trial Court was right to have dismissed the appellant’s case and refused to order the release of his properties and whether he was right to have held that the detention and seizure of the appellant and his properties are lawful and did not give rise to any damages.
I have considered the submissions of both counsel as well as the findings of the Court on these issues. The question to answer is, if the learned trial judge misdirected himself in his findings. At page 82 of the records of proceedings lines 13-18, the learned trial judge found as follows:
“from the affidavit evidence in this case, the fact is clearly established that the applicant took a total of N1,131,000.00 (One Million, One hundred and Thirty-one Thousand Naira) for the purpose of building a house but failed to do so. He did not return the money to the said Babajide Omotara or to either Gbenga or Olabisi Omotara through who the money was paid to the Applicant.”
The learned trial judge continued at page 83 of the printed records lines 1-3 as follows:
“This is an offence punishable under the criminal code of Ondo State. Hence, the police are still looking for the purpose of arraignment before the criminal Court for prosecution. As the victim of the fraud have lodged a complaint to the police, the police now represented by the 2nd and 3rd respondents, have a duty to perform. That duty which is created by the Constitution of this country is for the police to investigate the criminal complaint. The arrest and detention of the Applicant for the purpose of police investigation as aforesaid is therefore lawful and does not give rise to damages in favour of the applicant. The maxim is ?ex turpi causa non oritur action?- meaning ?no action can be founded on a base cause. The base cause here is the fraudulent conversion of the money meant for the building of a house by the applicant.”
It is instructive that the applicant herein had gone before the lower Court for the enforcement of his fundamental rights pursuant to Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended, specifically Sections 35, 37 and 44. That is right to personal liberty and right against compulsory acquisition of property. In relation to his detention, the Court seems to be saying that the Police were well within their right to investigate since an allegation of crime has been made against the appellant. By SECTION 35(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria as amended, every person is entitled to his personal liberty and nobody shall be deprived of such personal liberty except upon reasonable suspicion of his having committed a criminal offence. The appellant was alleged to have obtained money by false pretence to build a house for one Babajide Omotara, the complainant. In the first place, what kind of house could one build with N1,131,000.00 even in 2009?
Secondly the affidavit evidence shows that the money was given in installments. So assuming that you give someone deposit for the construction of a house, you have not seen the output from the initial deposit and you continue to give him money? You did not secure yourself by entering into a valid contract to protect your interest. Such a person does not in my view deserve the protection of the law. For as it is said equity only aids the vigilant. Furthermore from the affidavit evidence of the appellant, it does appear that it is a failed contract. He admitted to N445,000. The rational thing to do was to have asked him to refund the said sum and for the complainant to sue him for the balance by way of default summons in the magistrate Court to prove and collect the balance. Even if the Police felt some offence has been committed, it is not up to them to accuse, try, convict and sentence him the way they have done and even executed the judgment by carting his property from the house. The trial Court too from the quoted pages of the proceedings seems to have tried the appellant and convicted him on the affidavit evidence. See in particular page 82 lines 13 where the trial Court found that:
‘From the affidavit evidence in this case, the FACT IS CLEARLY ESTABLISHED THAT THE APPELLANT TOOK A TOTAL SUM OF N1, 131,000.00?.’
The learned trial judge was in grave error in this finding. The appellant was not being tried before him. All the respondent needs to establish before him is that there is a criminal complaint against the applicant and they have reasonable evidence upon which to charge him to Court or that they have charged him to Court and show evidence of such charge. No person can be tried for a criminal offence by affidavit evidence.
This is what the learned trial judge seems to have done in this case. This act makes the trial judge incompetent to fairly determine this application as he has become biased.
The power of the Police to investigate an allegation of crime against a suspect is not unfettered. We all know that by SECTION 4 of the Police Act, it is clear that the police have a right to investigate allegations of crime which may sometimes involve arrest. But under proper Police protocol, investigation should precede arrest. Indeed the Supreme Court stated in the case of FAWEHINMI V I.G.P (2002)7 NWLR PT 164, 606 Per Uwaifo JSC that:
In a proper Police investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest let alone caution a suspect before the Police look for evidence.
See also the case of UBA PLC & ORS V MR. UGOCHUKWU DURUNNA (2015) LPELR-25625. It is an open secret that the Police have turned themselves into debt collectors in this country. The situation is so bad that in a clear case of failure of contract, such criminal allegations of criminal breach of trust, conversion, stealing etc are often slapped on suspects. The Court should therefore be wary of striking a just balance between persons who want to use the medium of the Enforcement Rules to wriggle out of prosecution and that of the Police who want to use spurious allegations of crime to turn themselves into debt collectors.
In respect of the instant application, there is nothing before the Court to counter the contention that the appellant was granted bail on the day he was arrested but did not have anyone to take him on bail. In the circumstances, I have no option but to grant them the benefit of doubt. I therefore hold that the appellant did not satisfy the lower Court that he had someone to take him on bail on the day he was arrested but the police refused to grant him bail. In other words in the circumstances of this case, the trial Court was right to have held that the detention of the appellant was not wrongful.
What remains to be resolved on this issue is whether the confiscation of the appellant’s property was wrongful. The police alleged that they went to the appellant’s house with a search warrant and that the properties or items of electronics were confiscated or carted away as exhibits. Exhibits for what offence exactly? The allegation against the appellant is not stealing or receiving stolen properties. It is unthinkable to suggest that the Police on mere suspicion can cart away the property of a suspect who has not even been charged to Court, let alone been convicted. By SECTION 36(4) and (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended, a person is presumed innocent until found guilty by a Court of law. It is therefore only the Court that can make an order of forfeiture of the property of a convict either as proceeds of crime etc. The 2nd and 3rd respondents are therefore incompetent to have confiscated the property of the appellant whether they did so through a search warrant or not and whether they hide under some feeble excuse of using them as exhibits or not. See the case of CHIDOLUE V EFCC (2012) 6 NWLR PT 1292, 160. I find therefore that the trial judge was in serious error when without trying the appellant he found at page 83-84 lines 14-18 and lines 1-7 respectively:
‘As to the order compelling the Police to release the properties of the applicant seized during from his house by the Police, learned counsel to the 2nd and 3rd respondents says the items seized have been treated as exhibits because part of the money fraudulently collected by the applicant from the Omotaras was used to buy the electronics. They are to be tendered as exhibits during the criminal prosecution of the applicant before the criminal Court shortly. Therefore learned counsel to the 2nd and 3rd respondents have urged me not to grant the application for the release of the items. I agree in toto with him. Apart from tendering the items as Exhibits during the impending criminal trial of the applicant, the rule of tracing in equity prevent me from making an order for the release of the items to the applicant now.”
This is not the kind of financial crime where property may be deemed as proceeds of crime. And even if it is, it is only the Court and never the Police or EFCC that can make an order of forfeiture either interim or final. I hold therefore that the confiscation and carting away of the appellant?s property (electronics) is unwarranted, unjustified and ultra vires the 3rd respondent.
The appellant is not only entitled to an Order for their return but also compensatory damages for their wrongful detention. Issues (2) and (5) are therefore resolved in favour of the appellant.
Issues (3) and (4) will be taken together. This is the issue of award of N50, 0000 cost to each of the respondents and whether the trial judge was wrong in law to have granted the relief not sought for by the respondents.
I have gone through the entire judgment of the trial Court contained at pages 61-85. There is no mention of the 1st respondent. The records of proceedings are contained at pages 54-59. The record shows that the matter came up two times. On both occasions, the 1st respondent was present but he did not file any process and was not represented by counsel. He was never heard. With all due respect, the High Court is a superior Court of record and is not a customary Court. A party/litigant before the High Court can elect either to defend a matter by himself or engage a counsel of his choice. Whichever option he chooses he has an obligation to comply with the rules of Court by filing the relevant process(es).
The Court never asked him if he had anything to say. He never asked for costs as did the counsel for the 2nd and 3rd respondents at page 59 lines 23-24.
It is trite law that the power to award or refuse to award cost is entirely at the discretion of the Court. But like all discretion it must be exercised judicially and judiciously. See the case of NBCI & ANOR V ALFIJIR (MINING) NIG. LTD (1999) 14 NWLR, PT. 638, 176. It is also settled law that a Court cannot award what was not asked for. The counsel to the 1st respondent is misconceived when he argued in his brief and equated award of cost with ancillary reliefs. They are not the same. And even if they are the issue of ancillary relief does not apply to the 1st respondent who filed nothing and so has no relief before the Court upon which the Court can make an order for ancillary relief. I find on the authority of KACHALLA V BANKI & ORS (2006) 8 NWLR PT 982, 364, that the Court will not award what was not asked for. See also the case of ETAJATA & ORS V OLOGBO & ANOR (2007) 16 NWLR, PT 1061, 554. It was therefore wrong for the trial Court to have awarded N50,000 costs in favour of the 1st respondent and I so hold.
In respect of the 2nd and 3rd respondents, I find that the discretion of the Court was not judicially and judiciously exercised. They are government agencies. They did not pay filing fees. What is the equity in awarding costs against an individual who is enforcing his fundamental right? Award of cost is not supposed to be punitive in the circumstances of this case even though it follows events. See the case of EMORI V EGWU & ANOR (2016) LPELR-40123 and UBA V PRIMA IMPEX NIG. LTD & ORS (2017) LPELR-42015. In the instant case, I can conclude that the aim of awarding the cost is merely to punish the appellant. I find therefore that it amounts to an improper exercise of the Court?s discretion and I so hold.
The other ancillary matter that remains to be considered is whether the 2nd respondent was properly sued in his personal capacity. The facts as revealed from the affidavit evidence in this case are that the 2nd respondent was the IPO. There is no evidence of what he has done that amounts to misuse of power under Section 341 of the Police Regulations made pursuant to Section 46 of THE POLICE ACT, CAP P19, LAWS OF THE FEDERATION, 2004. I see none.
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The 2nd respondent performed his duties in accordance with the law. I hold that he ought to have been sued with his rank and position as IPO and not in his individual capacity. The learned counsel to the appellant is clearly misconceived on this point as he has not shown either a misuse of power by the 2nd respondent or an act done in excess of his authority. See the cases of ODIONG V ASST. IGP (2013) LPELR-20698 and ANNGU V AROMONA & ORS (2016) LPELR-42950.
The appellant prayed for an Order that his electronics which were seized by the 2nd and 3rd respondents be released to him. I see no basis for the continued retention of these items. This is especially in view of my findings that their retention is unconstitutional. Also if for six years the respondents have not prosecuted the appellant to tender these items in evidence as ‘exhibits’ as claimed, it means right from the outset they did not intend to prosecute the appellant. The appellant asked for N10 Million damages for breach of his constitutional rights to personal liberty and right to private and family life. I find that the infringement of his right to personal liberty was not proved.
In awarding damages for the second arm therefore I am guided by the decision of the Supreme Court in the case of OKONKWO V OGBOGU (1996) 5 NWLR PT 449, 420 AT 435, PARAS F-G where the Court held that substantial damage may be awarded even where there has been no physical injury. There must have been a lot of inconvenience caused to the appellant when all these items were carted away from his house without justification. And it is six years and no prosecution has been commenced against the appellant. This is highhanded and abuse of power which should not be condoned under any circumstance.
On the whole, this appeal succeeds in part. For the avoidance of doubt:
1. I declare that the detention of the appellant’s electronics is unconstitutional. It is an infringement of the appellant’s fundamental right as enshrined in the 1999 Constitution, specifically SECTION 37 thereof.
2. I therefore Order that the 2nd and 3rd respondents release to the appellant forthwith all his properties seized and detained by them since 28th October, 2012 namely:
a) Deep freezer;
b) Television set;
c) Generator;
d) DVD cassette player;
e) 3 stabilizers;
f) Audio DVD cassette player;
g) Laptop;
h) Table gas and
i) N20,000 cash.
3. I award N5,000, 000 (Five Million Naira) damages against the 2nd and 3rd respondents in favour of the appellant.
4. I award N50, 000 costs against all the respondents jointly and severally.
5. I hereby set aside the Order of costs made by the trial judge against the appellant and in favour of 1st and 2nd respondents jointly and severally.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead Judgment just delivered by His Lordship, Patricia Ajuma Mahmoud, JCA dismissing this appeal.
I, having studied the Judgment and the record of appeal, cannot find where to add any more useful opinion to the gravamen of the decision other than to concur that the reasoning and conclusion reached thereat is apt. I endorse the said lead Judgment and agree that the appeal be allowed in part.
As relating the consequential order relating to the return of itemised goods/properties, wrongfully taken off the Respondent, it is however my added order that the said goods, shall in the event of having perished or inability/or impossibility of return, be returned/restored in cash or monetary value upon the assessment of the Registrar of the trial Court acting on the Affidavit evidence of both parties or upon the Affidavit evidence of either parties before the Deputy Chief Registrar of this Court and upon any default and expiration of the period of Appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege to read, in advance, the leading judgment delivered by my learned brother, PATRICIA. A. MAHMOUD, JCA. I concur with the reasoning and conclusion in it. I too allow the appeal in part and in the manner ordained in the judgment. I abide by the consequential orders decreed in it.
Appearances:
Mr. M.A. FadunmoyeFor Appellant(s)
Mrs. S.P. Ashidi for the 1st Respondent.
Mr. Aderemi Ademola for the 2nd and 3rd Respondents
