ACCESS BANK PLC v. KINAR WEST AFRICA LIMITED & ORS (2019)

ACCESS BANK PLC v. KINAR WEST AFRICA LIMITED & ORS

(2019)LCN/12947(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IB/153/2012

RATIO

THE POLICE IS NOT A DEBT RECOVERY AGENT

UNLAWFUL ARREST: REMEDY

The remedy for unlawful arrest and detention is specifically set out in Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended. It is compensation in damages and Public apology. See also NWANGWU VS. DURU (2002) 2 NWLR PT. 751 PG. 265 AT 279 PARAGRAPHS G – H.PER FOLASADE AYODEJI OJO, J.C.A.

DAMAGES: DAMAGES ARE GRANTED AT THE DISCRETION OF THE TRIAL COURT AND THE APPELLATE COURT WILL NOT LIKELY DISTURB SUCH DAMAGES
The law is trite that award of damages is at the discretion of the trial Court. An Appellate Court will not disturb damages assessed by a trial Court except it is satisfied that the quantum of damages awarded is either ridiculously high or low or it acted on wrong principles. See EDIAGBONYA VS. DUMEZ (NIG.) LTD. AND ANOR. 1986 LPELR 1011 AT 16 PARAGRAPHS A – B; SABRU MOTORS LTD. VS. RAJAB ENT. (NIG.) LTD. (2002) LPELR 2971 AT 14 – 15 PARAGRAPHS E – A; INTERNATIONAL MESSENGERS (NIG.) LTD. VS. PEGOFOR INDUSTRIES LTD. (2005) LPELR 1525 AT 15 PARAGRAPHS A – C.PER FOLASADE AYODEJI OJO, J.C.A.

AGGRAVATED DAMAGES: WHEN THEY WILL BE GRANTED
Aggravated damages may be awarded where the damages are at large and the conduct of the defendant was such as to injure the plaintiffs proper feeling of dignity and pride. See ODIBA VS. MUEMUE (1999) 10 NWLR PT 622 PG. 74.
In JULIUS BERGER NIGERIA PLC. & ANOR. VS. MRS PHILOMENA UGO (2015) LPELR 24408 (CA). It was held thus:
Aggravated damages on the other hand may be awarded where the defendants motives and conduct were such as to aggravate the injury to the plaintiff. They are a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained.
The Supreme Court also held per Galadima JSC in the case of MARINE MANAGEMENT ASSOCIATES INC. & ANOR VS. NATIONAL MARITIME AUTHORITY (2012) LPELR 20618 (SC) as follows:
The Court may take into account the Defendants motives, conduct and manner. And where they have aggravated the plaintiff damages may be awarded.PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICES:

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

ACCESS BANK PLC – Appellant(s)

AND

1. KINAR WEST AFRICA LIMITED
2. MR. RAJU BHAGWANANI
3. THE DEPUTY INSPECTOR GENERAL OF POLICE ‘D’ DEPARTMENT FORCE CRIMINAL INVESTIGATION DEPARTMENT ALAGBON, IKOYI, LAGOS.
4. THE COMMISSIONER OF POLICE, (SPECIAL FRAUD UNIT) – Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The 1st and 2nd Respondents filed a motion on notice with No: M/148/10 pursuant to the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 at the High Court of Justice Oyo State holden at Ibadan wherein they seek the following reliefs:
1. A declaration that the arrest and detention of the 2nd Applicant by the Respondents over a dispute/ disagreement arising from a Customer/ Banker relationship constitutes a wrongful infringement of the Applicants right to personal liberty, human dignity and freedom of movement as guaranteed by Sections 34, 35 and 41 respectively of the 1999 Constitution of the Federal Republic of Nigeria.
2. A declaration that the forceful invasion of the 2nd Applicants residence with a view of arresting him by the Respondent on account of the loan facility advance to the 1st applicant is wrongful and unlawful.
3. A declaration that the use by the 1st Respondent of armed agents of the 2nd Respondent to enforce an otherwise Civil and Contractual Obligations between the Applicant and the 1st Respondent is unconstitutional.

4. An order directing the Respondents jointly and severally to pay to the applicants the sum of N20,000,000 (Twenty Million Naira) being general and aggravated damages for the wrongful arrest and detention of the applicant and particularly for the embarrassment, humiliation and violation of the applicants fundamental rights thereby occasioned.
5. An order of perpetual injunction restraining the Respondents, their servants, agents and privies from further harassing, intimidating and threatening to re-arrest and detain the applicants.
And for such further orders as this Honourable Court may deem fit to make in the circumstance.
See pages 8, 32A of the record.

The 1st and 2nd Respondents filed two other motions both dated 1st May, 2010 wherein they seek to join the Commissioner of Police (Special Fraud Unit) as a party and to amend the Appellants name. See page 35 and 46 of the record. The Appellant who was the 1st Respondent at the lower Court also filed a notice of Preliminary Objection. After taking arguments on all the applications, the Court delivered

its judgment on the 20th of December, 2010. See page 94C, 110 of the record. The Court at page 109, 110 held as follows:
Accordingly I find merit in this application:
1. I hereby declare the arrest and detention of the 2nd Applicant by the Respondent over a dispute/ disagreement arising from a Customer/Banker relationship constitute a wrongful infringement of the Applicants right to personal liberty, human dignity and freedom of movement as guaranteed by Sections 34, 35 and 41 respectively of the 1999 Constitution of the Federal Republic of Nigeria.
2. It is also declared that the forceful invasion of the 2nd Applicants residence with a view of arresting him by the Respondent on account of the loan facility advanced to the 1st Applicant is wrongful and unlawful.
3. A declaration that the use by the 1st Respondent of armed agent of 2nd and 3rd Respondent to enforce an otherwise Contractual Obligation between the Applicant and the 1st Respondent is unconstitutional.
4. On the claim to damages, I find the Applicant claim for N20 million unsupported by credible evidence and unjustifiable and in my view excessive. However I

assess in view of the humiliation as stated by the 2nd Applicant that he was arrested in his home in the full glare of family members and neighbour as a Criminal that a sum of N5 million would be appropriate in such circumstance. Therefore a sum of N5 million is assessed as damages against the Respondent jointly and severally being aggravated damages for the unwrongful arrest and detention of the Applicant and particularly for the embarrassment, humiliation and violation of the Applicants fundamental right.
5. It is hereby ordered that the Respondent their servant, agent and/or privies be hereby restrained from further harassing intimidating and threatening to arrest and detain the Applicant in pursuance of recovery of the amount of loan outstanding save and only in respect of steps as lawful methods of loan recovery i.e. instituting claim before a Court, prove same and obtaining judgment and proceed to enforce the judgment.

Aggrieved by the decision of the lower Court the Appellant filed a Notice of Appeal on the 22nd of December, 2010. See page 111 of the record. The said Notice of Appeal was subsequently amended. The Amended Notice of

Appeal which was filed on the 28th of September, 2012 was deemed as properly filed on the 20th of March, 2018. The relief sought by the Appellant from this Court is as follows:
To set aside the judgment and the award of N5,000,000 (Five Million Naira) aggravated damages and the Court to dismiss the 1st and 2nd Respondents case.

Briefly, the facts of this case are as follows:
The 1st Respondent, a customer of the Appellant applied for an initial loan facility of N4,000,000.00 (Four Million Naira) from her sometimes in February, 2005 and an additional facility of Six Million Naira. The Respondent could not however repay the loan as at when due.

Following the Appellants demand for the repayment of the loan and failure of the 1st Respondent to repay, the Appellant caused the agents of the 3rd Respondent to invade the residence of the 2nd Respondent who is the alter ego of the 1st Respondent. The 2nd Respondent was arrested and whisked off to the office of the 3rd Respondent and later detained at the police Station, Iyaganku, Ibadan. He was later taken to the 3rd Respondents office in Lagos where he was again

detained. While in detention in Lagos, the agents of the 3rd Respondent ordered him to issue post-dated cheques before he was granted administrative bail.

None of the Respondents in this appeal filed a Brief of Argument. This appeal was therefore with the leave of Court heard on the Appellants Brief alone. Learned Appellants Counsel in the Appellant Brief of Argument distilled seven issues for the determination of this appeal to wit:
1. Whether the action is competent for the trial Court to have jurisdiction to determine the Suit in view of the non-juristic nature of all the Respondents (Ground 1)
2. Whether the non-juristic nature of the parties as contained on the originating processes can be cured by an amendment or joinder. (Ground 2)
3. Whether the award of aggravated damages of N5,000,000.00 (Five Million Naira) against the Appellant and the 3rd Respondent jointly and severally was right in view of the fact that there was no evidence whatsoever adduced in support of it. (Ground 3)
4. Whether the complaint lodged by the Appellants to the Police, the arrest of the 2nd Respondent and the investigation conducted by them

is as a result of civil allegation or criminal allegation and whether the 4th Respondent has the right to have acted the way it acted. (Ground 5)
5. Whether the learned trial Judge had the power to amend the originating process (i.e Motion on Notice) of the Applicants under the Fundamental Rights (Enforcement Procedure) Rules, 2009 when the Rules only permit the amendment of Statements in support of an application for enforcement of Fundamental Rights. (Ground 6)
6. Whether the trial Judge was right in law when he amended the name of the 1st Respondent in his final Judgment (rather than during the pendency of the action) and without giving the parties the opportunity to file consequential amendment. (Ground 7).
7. Whether the trial Judge was right in law when he joined the Commissioner of Police, (Special Fraud Unit), Milverton, Ikoyi, Lagos in his final Judgment (rather than during the pendency of the action) thereby shutting out the party joined as there was no opportunity for the said party to be served with Court Processes or to file a defence and to be heard. (Ground 8)

Issues Nos. 1, 2, 5 and 6 formulated are interwoven, so also

are issues Nos. 3 and 4. I shall therefore deal with issues 1, 2, 5 and 6 together, then 3 and 4 together before dealing with issue No. 7.
ISSUES NO. 1, 2, 5 and 6.
ISSUE NOS. 1
Whether the action is competent for the trial Court to have jurisdiction to determine the Suit in view of the non-juristic nature of all the Respondents.
ISSUE NOS. 2
Whether the non-juristic nature of the parties as contained on the originating processes can be cured by an amendment or joinder.
ISSUE NOS. 5
Whether the learned trial Judge had the power to amend the originating process (i.e. Motion on Notice) of the Applicants under the Fundamental Rights (Enforcement Procedure) Rules, 2009 when the Rules only permit the amendment of Statements in support of an application for enforcement of Fundamental Rights.
ISSUE NOS. 6
Whether the trial Judge was right in law when he amended the name of the 1st Respondent in his final Judgment (rather than during the pendency of the action) and without giving the parties the opportunity to file consequential amendment.

On the above issues, learned counsel to the Appellant in his

brief of Argument submitted that the lower Court which held the 1st and 2nd Respondents herein sued non juristic persons should have struck out the entire suit for being incompetent. The two Respondents in the originating motion filed at the lower Court were (1) Access Bank Plc. Dugbe branch, Ibadan, Oyo State and (2) The Deputy Inspector-General of Police D Department, Force Criminal Investigation.

It is Appellants contention that the lower Court which found the above Respondents to be non-juristic persons ought to have struck out their names and consequently strike out the entire suit. He relied on the cases of FAWEHINMI VS. N.B.A. (NO. 2) (2002) 50 WRN 27; THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA (DECEASED) VS. EKE SPIFF (2009) ALL FWLR (PT. 467) PG. 1 and UNION BANK OF (NIG.) PLC. VS. OKUBAMA (2001) FWLR (PT. 33) PG. 280.

He submitted the lower Court lacked the power to order an amendment to cure the defect as it did as no order for joinder can be made in an incompetent suit. He craved in aid of his submission the case of UNOKA VS. AGILI (2008) ALL FWLR (PT. 423) PG. 1349 and WEMA BANK PLC VS. AWOTUNDE (2010) 25 WRN PG. 142.

Counsel submitted further that Order VI of the Fundamental Rights (Enforcement Procedure) Rules 2009 only permit the amendment of the statement in support of an application for the Enforcement of Fundamental Rights and no more. He urged us to hold that the amendment granted by the lower Court was a nullity.

It is settled law that jurisdiction goes to the root of adjudication and any proceedings conducted without jurisdiction is a nullity. See NONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) PG. 623 AT 655 PARAGRAPHS G – H; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) PG. 508 AT 526, 527 PARAGRAPHS G A and DAPIANLONG VS. DARIYE (2007) 4 SC (PT. 111) PG. 118 AT 162.

In the course of hearing the originating motions, the 1st and 2nd Respondents as Applicants before the lower Court filed two applications. Both motions were filed on the 1st of May, 2010. See pages 35, 38 and pages 46, 49. The motion at pages 35, 38 prayed for an order joining the Commissioner of Police (Special Fraud Unit) 13 MILVERTON IKOYI LAGOS as a party to the suit.

The second motion at pages 46, 49 is for leave of Court to

amend the processes in the suit by substituting the 1st Applicant with ACCESS BANK PLC. Plot 1665, Oyin Jolayemi Street, Victoria Island Lagos. Counsel to the erstwhile 1st Respondent filed a Notice of Preliminary Objection dated 18th September, 2010 challenging the jurisdiction of the lower Court to hear the motions on the ground that the 1st and 2nd Respondents are not juristic persons.

The trial judge took the motions and the Preliminary Objections together with the substantive motion and determined all of them in its final judgment. After a consideration of all the pending applications the lower Court found that the name in which the Appellant was originally sued was a mistake of counsel and amended it to read the Appellants proper name viz: Access Bank Plc. The Court further found the instant 3rd Respondent to be a necessary party that would be bound by the decision of the Court and proceeded to join him as a party. In its judgment at page 102 of the record the trial Court held:
In respect of the application to amend I have considered the application and the argument proffered and since it is now settled law that there is no error

or blunder which if not fraudulent or intended to overreach which a Court ought not correct if it is done without prejudice to the other party. A Court exists to do justice and not to punish litigant for the errors of their counsel. See HART VS. IJEBI (1998) 10 NWLR (PT. 568) AT 28. Applying the above principle I find that by suing Access Bank Plc. Dugbe Branch is a mistake of counsel and having applied to have the appropriate party sued, such amendment is grantable in order to ensure that the claims of parties are determined on the merit. The name Access Bank Plc. Dugbe Branch is now struck off this cause and its place replaced with Access Bank Plc. Also in respect of the joinder application, I have read the supporting affidavit of the 1st Applicant where he stated that one officer of the fraud unit when shown an earlier order of this Court said since they are not party to the action. They cannot be bound by any order made. This deposition having not been controverted present a deserved circumstance where joinder of a party becomes necessary so as to be bound by whatever order that could be made. Accordingly the application also succeeds. The Commissioner of

Police (Special Fraud Unit) 13 Milverton Ikoyi Lagos is hereby joined as 3rd Respondent, I have also examined my record and satisfied that the said 3rd Respondent has been served with all processes of the Court.

The Appellant was sued in the name of ACCESS BANK PLC, DUGBE BRANCH OYO STATE which the Appellant contend is not a juristic person. The lower Court however apparently considered it a misnomer and went ahead to amend the Appellants name. The law is that where a party is wrongfully described in an action the process may be amended to reflect the correct party if the Court is satisfied that it is a misnomer. The amendment would be made where a cogent reason is given for the wrong description. See ALSTHOM S. A. VS. SARAKI (2000) 14 NWLR (PT. 687) 415 AT 423-424 PARAGRAPHS H -B; BANK OF BARODA VS. IYALABANI CO. LTD. (2002) 13 NWLR (PT. 785) 551 AT 578, 580 PARAGRAPHS F- A.
The general dictum is that a juristic person cannot be substituted for a non-juristic person. See the case of AGBONMAGBE BANK LTD. VS. GENERAL MANAGER G. B. OLLIVANT LTD & ANR. (1961) 1 ALL NLR 21. This

dictum was considered in the case of MAERSK LINE VS. ADDIDE INVESTMENT LTD. (2002) 11 NWLR (PT. 778) PG. 317. In that case the name in which one of the Defendants at the trial Court was sued was challenged on the ground of being a non-juristic name. The trial Court as in the present case proceeded to suo motu amend the name to one which could be sued. On appeal, the Court of Appeal found the said Defendants name to be a non-juristic name but upheld the trial Courts decision to amend suo motu. In a further appeal to the Supreme Court it was contended on behalf of the Appellant that the order for amendment was wrongly made as a juristic person cannot be substituted for a non-juristic person. The Supreme Court held that the popular dictum stated above would not apply where an application for amendment is made and a cogent reason is given for the wrong description. Ogundare JSC in the lead judgment held as follows:
Learned Counsel for the Defendants relied on this dictum in support of his submission that a juristic person cannot be substituted for a non-juristic person. With respect to learned counsel, I think he read the dictum out of context.

For the learned Justice of the Court of Appeal had earlier observed:
“The capacity in which the 3rd respondent is sued, has been challenged, that is, that the 3rd respondent in this appeal is not a legal personality known in law. There was no application of amendment brought by the appellant before the lower Court to insert the real name of the 3rd respondent. On the face of the record before the Court below, the 3rd respondent is the assistant chief registrar, High Court, Aba.”
Surely, if an application to amend had been brought and sufficient reasons given for naming the party wrongly, it might have been granted and there would have been no need for the dictum.
The plaintiffs did not apply for amendment even after counsel for the defendants had raised objection to the 1st defendant being sued in the name of a trade mark.
When counsel for the defendants took objection to the joinder of 1st defendant on the ground that it is not a juristic person, it was open to counsel for the plaintiffs to apply for amendment, on the ground of misnomer. He did nothing of the sort. Rather he argued, and the learned Chief Judge agreed with him, that the 1st

defendant was a juristic person. Clearly, this was a course of argument totally inconsistent with asking for amendment of the name of the 1st defendant.
Still in the same case, Ayoola JSC at page 377 paragraphs C- F held: An amendment is often readily granted where what is involved is a mere misnomer. See OLU OF WARRI & ORS. VS. ESI & ANR. (1958) Vol. 1 NSCC 87 (1958) SCNLR 384 where this Court said:
The cases Establishment Baudelot vs. R. S. Graham & Co.Ltd. (1953) 1 ALL E. .R 149 and Alexander Mountain & Co. vs. Rumere Ltd. (1948) 2 ALL E. R. 483 . . . . . are authorities to show that in a case of misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.
Misnomer in this sense means simply a wrong use of a name. If the entity intended to be sued exist but a wrong name is used to describe it that in my judgment is a misnomer.
In the instant case, there was an application made by the 1st and 2nd Respondents to amend the wrong name in which the Appellant was sued. The depositions in the affidavit in support of the application was

to the effect that the action ought to have been commenced against the Appellant and not through its Ibadan branch office and that the amendment was necessary to correct the mistake of counsel. See page 48 of the record. The facts in the affidavit which were relied upon by the lower Court in making the amendment were uncontroverted. There is also evidence that Access Bank Plc., the Appellant herein exists but was sued as Access Bank Plc. Dugbe Branch, Ibadan Oyo State. A misnomer is a mistake in naming a person, place or thing especially in a legal instrument. See Blacks Law Dictionary Eight Edition page 1020. The general position of the law is that where the correct person is taken to Court under a wrong name or an incorrect name is given to a party, an amendment may be sought to correct the mistake and the Court is obliged to allow the amendment. See NKWOCHA VS. FEDERAL UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (PT. 422) PG. 112 and NJOKU VS. UAC FOODS (1999) 12 NWLR (PT. 632) PG. 557.
In the light of all of the above, can it be said that the lower Court acted within the law when it suo motu amended the name of the 1st Respondent in the motion to that of

the Appellant. I would say it did and I so hold. It is clear beyond any peradventure that the 1st and 2nd Respondents intended to sue the Appellant but merely wrongly described her.
I wish to further refer to the provision of Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure Rules) 2009 which provides as follows:
Where in the course of any Human Rights Proceedings, any 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 shall apply.
The Fundamental Rights Enforcement Procedure Rules 2009 is silent on the procedure to adopt where proceedings is commenced against a wrong Respondent or where his name has been incorrectly stated. Where such situation arise as in the present case recourse shall be made to the rules of Court which in this case is the Oyo State High Court Civil Procedure Rules 2010 which provides as follows:
Where an action has been instituted against a wrong defendant or where the name of the defendant has been incorrectly stated a judge may upon application order a substitution or addition of

any person as defendant or correction of any such name on any term as may be just.
I have earlier found that the amendment was validly made by the lower Court. It rightly exercised its powers to correct the name of the Appellant as the 1st Respondent at the lower Court. The Court found it had the requisite jurisdiction to do the amendment made and overruled the preliminary objection. That decision of the lower Court cannot be faulted and I so hold.

The Appellant further complained that after the order of amendment was made, the lower Court did not give opportunity to parties to file consequential amendments. The amendment made by the lower Court was that amending the name of the Appellant on its record to reflect its correct name. There is no doubt the 1st and 2nd Respondents intended to and did sue the Appellant at the lower Court. The Appellant filed a notice of preliminary objection as well as its counter affidavit to the main application. In accordance with the Fundamental Right Enforcement Procedure Rules 2009 the Court reserved its decision on both the preliminary objection and the main motion. The Court in its judgment

overruled the objection amended the name of the Appellant and after a consideration of the counter affidavit filed by the Appellant gave its decision on the substantive application. The question I ask is what other consequential process did the Appellant need to file? The Appellant did not say and I cannot think of any. The Appellant filed a counter affidavit which was its defence to the substantive motion. The Court considered it before giving its final decision. To my mind the Appellant did not suffer any injustice by the amendment made suo motu by the Court. The Appellants submission in this regard is a mere technicality which should not be allowed to defeat the justice of the case.
In conclusion, Issues Nos. 1, 2, 5 and 6 are resolved against the Appellant.

ISSUES NO 3 AND 4
ISSUE NO. 3
Whether the award of aggravated damages of N5,000,000 (Five Million Naira against the Appellant and the 3rd Respondent jointly was right in view of the fact that there was no evidence whatsoever adduced in support of it.
ISSUE NO. 4
Whether the complaint lodged by the Appellants to the Police, the arrest of the 2nd Respondent and the

investigation conducted by them is as a result of civil allegation or criminal allegation and whether the 4th Respondent has the right to have acted the way it acted.

Learned Appellants Counsel on the above issues submitted that the Appellant reported a case of issuance of dud cheque against the 1st and 2nd Respondents to the 4th Respondent and which report led to the arrest of the 2nd Respondent. He relied on a copy of the Appellants petition to the Police. He posited that the 3rd and 4th Respondents have the power and constitutional duty to investigate allegations of crime. He relied on Section 214 of the Constitution. Section 4 of the Police Act Cap. 359, Laws of the Federation of Nigeria 1990 and the cases of CHRISTLIEB VS. MAJEKODUNMI (2009) 2 WRN 81 AND FCMB VS. ETTE (2008) 22 WRN P 63. He urged us to hold that the 2nd Respondent was arrested and detained consequent upon a criminal allegation leveled against him by the Appellant.

Counsel argued further that there was no evidence before the lower Court that warranted the award of aggravated damages of Five Million Naira. He relied on the case of ODIBA VS. AZEGE (1998) 9 NWLR PT. 566 P.370 and

submitted that the 1st and 2nd Respondents failed to prove facts necessary for the award of aggravated damages. He urged us to hold that the award of aggravated damages of Five Million Naira against the Appellant was manifestly and extremely high and an entirely erroneous estimate which no reasonable tribunal will make in the circumstance of this case.

The lower Court in its judgment found that no criminal imputation was alleged against the 1st and 2nd Respondents and held inter alia that the arrest and detention of the 2nd Respondent by the 3rd and 4th Respondents on the instigation of the Appellant over a customer/banker dispute constituted an infringement of 2nd Respondents right to personal liberty, human dignity and freedom of movement guaranteed by the 1999 Constitution of the Federal Republic of Nigeria. See pages 108, 109 of the Record.

From the affidavit of parties filed in the Motion at the lower Court parties are ad idem that there exists a banker/customer relationship between the Appellant and the 1st and 2nd respondents, in furtherance of which the Appellant granted a loan facility which was not repaid as at when due.

The Appellant did not deny making a report to the 3rd and 4th Respondent on a criminal allegation of issuance of dud cheques.

The lower Court after a consideration of the affidavits and counter affidavits filed came to the conclusion that the 3rd and 4th Respondents on the instigation of the Appellant arrested and detained the 2nd Respondent over a civil matter which act it found unlawful.

The question now is whether the finding of the lower Court is supported by evidence. The 3rd and 4th Respondents are undoubtedly the police who have as their statutory duties the prevention and detention of crime, apprehension and prosecution of offenders. See Section 4 and Section 23 of the Police Act as well as Section 214(1) and 2(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). They therefore have the power to arrest and detain a person upon reasonable suspicion of his having committed a criminal offence. See Section 35 of the Constitution of the Federal Republic of Nigeria (Supra).
Having, reasonable suspicion however presupposes the existence of facts or information which would satisfy an

objective mind that the person concerned may have committed the offence or likely to commit the offence. See SUNNY UBOCHI VS. CHIEF GODWIN EKPO & OR (2014) LPELR 2353 (CA); OTERI VS. OKORODUDU (1970) ALL NLR 199 AND CHIEF ITA OKON AQUA VS. ETUBOM I. E. ARCHIBONG & ORS (2012) LPELR 9293 (CA).
The Appellant relied heavily on Exhibit A1 attached to its counter affidavit. It is the Appellants case that it made a report of a case of issuance of dud cheques, a criminal offence to the 3rd and 4th Respondents vide Exhibit A1. Exhibit A1 dated 16th April 2010 is addressed to the D.I.G. Force C.I.D. Force Headquarters, Abuja through the 4th Respondent and it is headed: RE CRIMINAL DIVERSION OF DEPOSITORS FUNDS: DUD CHEQUE AND STEALING OF VARIOUS SUMS.
While Exhibit A1 which is the Petition allegedly acted upon by the 3rd and 4th Respondents is dated 16th April 2010, the unchallenged evidence is that the 2nd Respondent was first arrested and detained on the 18th of March 2010. The arrest and detention of the 2nd Respondent was before the Petition was written and received. It follows therefore that the arrest of the 2nd Respondent could not have been based on

the Petition, Exhibit A1. I have gone through the affidavits and counter affidavits and the documents attached thereto and I cannot find any evidence to support the position of the Appellant that the 2nd Respondent was arrested based on a report that he issued dud cheques. It is not borne out of the record.
Why then was the 2nd Respondent arrested and detained? The Appellant in the letter of demand dated 9th February 2010 written by its recovery agent threatened the 1st and 2nd Respondents to use law enforcement agents to recover debt owed it by the 1st and 2nd Respondent. See page 26 of the Record. The lower Court in its judgment considered this vital piece of documentary evidence and rightly came to the conclusion that the 3rd and 4th Respondents were unlawfully used by the Appellant as a medium of compelling and coercing the 1st and 2nd Respondents to pay their debts. See pages 106. 108 of the record. The finding of the lower Court that the purported allegation of crime against the 2nd Respondent is an afterthought to cover up and cloth his arrest and detention with some legality and hide the real purposes of same which is debt recovery cannot be faulted.

The law is settled that the police i.e. the 3rd and 4th Respondents are not debt recovery agents and cannot be used by the Appellant to recover civil debts owed by the 1st and 2nd Respondent as was done in this case. See MCLAREN VS. JENNINGS (2003) 3 NWLR PT. 808 PG. 470 AND OCEANIC SECURITIES INTERNATIONAL LIMITED VS. ALH. BASHIR OLAIDE BALOGUN & ORS (2012) LPELR 9218 (CA).
The arrest and detention of the 2nd Respondent by the 3rd and 4th Respondents on the instigation of the Appellant in their bid to recover a civil debt from him amount to a breach of his fundamental right to liberty and freedom of movement as guaranteed by provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended). I find no reason to disturb the conclusion reached by the lower Court that the use of the police by the Appellant against the 1st and 2nd Respondents was oppressive and illegal and constitutes a breach of the 2nd Respondents constitutionally protected right to liberty.

The Appellant has complained that the award of Five Million Naira to the 1st and 2nd Respondents as aggravated damages was excessive and further argued

they were not entitled to damages at all.
The remedy for unlawful arrest and detention is specifically set out in Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended. It is compensation in damages and Public apology. See also NWANGWU VS. DURU (2002) 2 NWLR PT. 751 PG. 265 AT 279 PARAGRAPHS G – H.
Having found the arrest and detention of the 2nd Respondent unlawful and a breach of his fundamental right he is entitled to some quantum of damages. The Appellant who resorted to the use of police to recover debt owed her cannot escape the wrath of the law. He is liable to pay damages.
The law is trite that award of damages is at the discretion of the trial Court. An Appellate Court will not disturb damages assessed by a trial Court except it is satisfied that the quantum of damages awarded is either ridiculously high or low or it acted on wrong principles. See EDIAGBONYA VS. DUMEZ (NIG.) LTD. AND ANOR. 1986 LPELR 1011 AT 16 PARAGRAPHS A – B; SABRU MOTORS LTD. VS. RAJAB ENT. (NIG.) LTD. (2002) LPELR 2971 AT 14 – 15 PARAGRAPHS E – A; INTERNATIONAL MESSENGERS (NIG.) LTD. VS. PEGOFOR

INDUSTRIES LTD. (2005) LPELR 1525 AT 15 PARAGRAPHS A – C.
The lower Court in the instant appeal awarded aggravated damages. Aggravated damages may be awarded where the damages are at large and the conduct of the defendant was such as to injure the plaintiffs proper feeling of dignity and pride. See ODIBA VS. MUEMUE (1999) 10 NWLR PT 622 PG. 74.
In JULIUS BERGER NIGERIA PLC. & ANOR. VS. MRS PHILOMENA UGO (2015) LPELR 24408 (CA). It was held thus:
Aggravated damages on the other hand may be awarded where the defendants motives and conduct were such as to aggravate the injury to the plaintiff. They are a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained.
The Supreme Court also held per Galadima JSC in the case of MARINE MANAGEMENT ASSOCIATES INC. & ANOR VS. NATIONAL MARITIME AUTHORITY (2012) LPELR 20618 (SC) as follows:
The Court may take into account the Defendants motives, conduct and manner. And where they have aggravated the plaintiff damages may be awarded.

The Defendants may have acted with malevolence or spite or behaved in a high handed, malicious, insulting, aggressive manner. Aggravated damages are designed to compensate the plaintiff for his wounded feelings. See paragraph 1189 of Halsburys laws of England 4th Edition Vol.12 and the case of ILOUNO VS. CHIEKWE (1991) 2 NWLR (PT. 173) 316.
In arriving at the award of the sum of N5million as aggravated damages in favour of the 2nd Respondent, the lower Court considered the humiliation he suffered at his residence in the full glare of his family. It also considered the purpose of the arrest which it found was to illegally coerce the 1st and 2nd Respondents into paying the civil debt owed.
It is my view that the lower Court followed the proper principles in awarding damages in this case, I do not find the award excessive in the present circumstance and I do not see any reason why the damages as awarded should be disturbed.
Issues 3 and 4 are resolved against the Appellant.

ISSUE NO.7
Whether the trial Judge was right in law when he joined the Commissioner of Police, (Special Fraud Unit), Milverton, Ikoyi, Lagos in

his final Judgment rather than during the pendency of the action thereby shutting out the party joined as there was no opportunity for the said party to be served with Court processes or to file a defence and to be heard.

Under this issue the Appellants Counsel argued that the originating processes reflecting the joinder of the 3rd Respondent was neither filed nor served on the 3rd Respondent. It is the contention of Counsel that failure to file and serve the amended processes is tantamount to shutting out the newly joined 3rd Respondent which act constitute a breach of his fundamental right to fair hearing.

The lower Court while dealing with the issue of joinder of the 3rd Respondent held thus:
Also in respect of the joinder application I have read the supporting affidavit of the 1st Applicant where he stated that one officer of the Fraud Unit when shown an earlier order of this Court said since they are not party to the action. They cannot be bound by any order made. This disposition having not been controverted present a deserved circumstance where joinder of a party becomes necessary so as to be bound by

whatever order that could be made. Accordingly the application also succeeds. The Commissioner of Police (Special Fraud Unit) 13 Milverton, Ikoyi, Lagos is hereby joined as 3rd Respondent. I have also examined my record and satisfied that the said 3rd Respondent has been served with all processes of the Court. The proof of service dated 9th June 2010 and filed by Mr Adegbite Awe (Bailiff) of this Court. They have chosen to ignore the process served and the case will be determined in their absence.

I have gone through all the Grounds of Appeal filed by the Appellant in this Appeal. The findings of the lower Court quoted above which is at page 102 – 103 of the Record has not been made the subject of this appeal. The law is that a decision of a Court or finding of fact made by a Court of competent jurisdiction which is not appealed against remains valid, subsisting and binding between parties. See OLEKSANDR VS. LONESTAR DRILLING CO. LTD. (2015) 9 NWLR (PT. 1464) 337 AT 371, PARAGRAPHS A – B; BIARIKO & ORS VS. EDEH-OGWUILE & ORS (2001) LPELR 779 AT 33 PARAGRAPHS B – C; BHOJSONS PLC. VS. KALIO (2006) LPELR 777 AT 21, 22, PARAGRAPHS F

A AND AWOTE VS. OWODUNNI & ANOR. (1986) LPELR 660 AT 7 PARAGRAPHS D- E.
This Court will therefore not disturb the findings of fact made by the lower Court to wit: that its processes were served on the 3rd Respondent who chose to ignore it. The 3rd Respondent has not deemed it fit to appeal against the said finding. It is the Appellant that is crying on his behalf or rather who has chosen to cry more than the bereaved. There is no appeal against the above finding of fact. A party who has a window to ventilate his grievance and has chosen not to utilize the opportunity cannot be heard to complain he was denied fair hearing. This issue is again resolved against the Appellant.

Having resolved all issues against the Appellant, it follows that this appeal lacks merit. It is hereby dismissed. The judgment of the Oyo State High Court, Ibadan Judicial Division in SUIT NO: M/143/2010 delivered on the 20th of December 2010 is hereby affirmed. I award N100,000.00k costs in favour of the 1st and 2nd Respondents.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of My Lord FOLASADE AYODEJI

OJO, JCA just delivered. My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal lacks merit.

The appeal is also dismissed by me. I abide by the consequential orders including orders as to costs contained in the said lead Judgment.

HARUNA SIMON TSAMMANI J.C.A.: I had the benefit of reading in advance the judgment delivered by Folasade Ayodeji Ojo JCA.

The issues that came up for determination in this appeal were comprehensively and lucidly considered and adequately resolved by my learned brother. I have nothing useful to add that will enhance the resolution of the issues as done by my learned brother.

I therefore agree with my learned brother that this appeal is devoid of any merit. It is accordingly dismissed. I abide by the consequential order including the order on costs.

Appearances:

Temitope Iyada For Appellant(s)

For Respondent(s)

Appearances

Temitope Iyada For Appellant

AND

For Respondent