ABUJA LEASING CO. LTD v. MAYOWA & ORS (2020)

ABUJA LEASING CO. LTD v. MAYOWA & ORS

(2020)LCN/14561(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 04, 2020

CA/A/201/2019

RATIO

PLEADINGS: PROOF OF FUNDAMENTAL RIGHTS VIOLATION DURING INVESTIGATIVE PROCESS.

A person who asserts that an investigative process has violated his said fundamental rights must elicit evidence to establish such violations. If the adverse party disputes the violations by contrary evidence, the trial Court must determine that dispute by considering the evidence of all sides and find as a fact that the alleged violations took place or did not take place. A trial Court cannot grant remedies for such violations on the basis of the disputed evidence of one side, without considering the evidence of the adverse party and without any specific finding of the existence or non existence of the fact. It is the duty of a trial Court to consider the evidence of all sides in a case concerning every material issue. See Adebayo v. Shogo (2005) SCNJ 60, Ogunyade v. Oshunkeye (2007) 12 NWLR (Pt. 1057) 218 (SC) and Nwankudu v. Ibeto (2010) LPELR- 4391 (CA). The failure to consider the evidence in the counter affidavits of the respondents at the trial before granting the relief violates the respondents’ rights to a fair hearing. See Mafimisebi v Ehuwa (2007) 1 SCNJ 258.
The decision that the 1st respondent’s fundamental right was violated and the grant of the reliefs without any specific finding of the fact that the 1st respondent was arrested, humiliated, detained, dehumanised and is being continuously harassed, is baseless. Since the trial Court failed to evaluate the evidence of both sides on whether the 1st respondent was or was not arrested, detained, dehumanised and continuously harassed and did not make any specific finding of facts, I have considered if I should order a retrial of this case by the trial Court as the Supreme Court has held in Ogundepo & Anor v. Olumesan (2011) LPELR – 1297 (SC), that when the trial Court fails to make specific findings of facts before it and also fails to draw inferences from facts before it, a retrial can be ordered. But I think that to do so will unnecessarily protract the trial of this dispute and would therefore occasion injustice to the parties herein. This Court is in a position to do justice after considering the affidavit evidence of both sides. The Supreme Court in Ogundepo & Anor v. Olumesan held that a retrial should not be ordered if the trial will be unduly protracted and the appellate Court is in as good a position as the trial Court to decide the case on the evidence of all sides. Per EMMANUEL AKOMAYE AGIM, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ABUJA LEASING COMPANY LTD (Also Known As Abuja Leasing Company) APPELANT(S)

And

MR OJETUNDE AKINTOMI MAYOWA 2. INSPECTOR GENERAL OF POLICE 3. COMMISSIONER OF POLICE (FCT COMMAND) 4. EDWARD IGAFE RESPONDENT(S)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/201/2019 was commenced on 17-12-2018 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court delivered on 14-12-2018 by J.T. Tsoho J. The notice of appeal contains two grounds for this appeal, with the leave of this Court the notice of appeal was amended. The amended notice of appeal contained three grounds of appeal.

The appellant and 1st respondent filed, exchanged and adopted their respective briefs as follows- appellant’s brief and 1st respondent’s brief.

The appellant’s brief raised the following issues for determination.
1. Whether the learned trial Judge was right in going beyond the evidence before him in arriving at his judgment? (Distilled from Ground 1 & 2 of the amended Notice of Appeal).
2. Whether the learned trial Judge was right to gloss over the issue of Dud Cheques issued by the 1st Respondent and rather held that the civil transaction before the parties over-shadowed the criminal act of the dud cheque? (Distilled from Ground 3 of the Amended Notice of Appeal).

The 1st respondent’s brief raised the following issues for determination-
1. Whether the trial Court was right when he held thus:
“The highlighted evidence goes to show the dominance of features of a purely contractual civil transaction, devoid of any entrenched element of criminality on the part of the applicant. The fact of dishonoured cheque cannot over shadow the predominance of civil features of the matter and transform it to a criminal affairs as conceived by the respondents (Grounds 2 and 3 of the Amended Notice of Appeal and Issue 1 and 2 of the Brief)”.
2. Whether the learned trial judge glossed over the issue of dud cheque allegedly issued by the 1st respondent and rather held that the civil transaction between the parties overshadowed the criminal act of dud cheque?
3. Whether this appeal is incompetent and constitute an abuse of Court process and thus liable to be dismissed.

On 16-6-2020, at the hearing of this appeal the 1st respondent withdrew issue No.3 and it was struck out.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

I will determine the two issues together.

Learned counsel for the appellant argued that the 1st respondent by signing the offer letter for trade finance facility gave his consent to criminal prosecution in the event that he issues any dud cheque to the appellant, that the appellant was entitled to impound the 1st respondent’s car pledged as collateral for the loan received by the 1st respondent, that the appellant was issued dud cheques by the 1st respondent and as a responsible corporate citizen, reported the matter to the police to investigate the dud cheques which is a criminal offence, that the appellant was entitled to make the criminal complaint, that the complaint was strictly on the issuance of dud cheques by the 1st respondent and was not for debt recovery and that the police investigation of the complaint did not violate the 1st respondent’s fundamental right.

Learned Counsel for the 1st respondent argued that the transaction is an entirely civil transaction devoid of any atom of criminality, that the 1st respondent was demanded to provide the issued cheques to show readiness to pay up the loan, that the appellant acknowledged that the

1st respondent paid the sum of N1,750,000.00 towards repaying the loan, that the appellant in addition it took possession of the 1st respondents brand new Hyundai Santa Fee Jeep as collateral for the loan in accordance with the terms of the contract, that the appellant laid the criminal complaint to the police in respect of the loan and masterminded the arrest of the 1st respondent, that the police detained and tortured the 1st respondent for failure to pay the balance of the loan and demanded he paid the loan and that the 1st respondent suffered severe malaria, sepsis and pneumonia as a result of the harsh treatment he received, that the trial Court considered these admitted evidence in arriving at its decision, that the cheques were issued as a condition precedent to the disbursement of the loan, that the 1st respondent when he issued them believed that there would be funds in the various accounts to satisfy the monthly payments of the loan, that the 1st respondent showed his desire to liquidate the debt by paying N1,750,000.00, that there was no basis for the allegation of fraud against the 1st respondent and that the decision of the trial Court is correct.

Let me now determine the merits of the above arguments of both sides.

The argument of Learned Counsel for the appellant that by signing the offer letter for the trade finance facility, the 1st respondent gave his consent that he be criminally prosecuted if he issues a dud cheque to the appellant is not correct as it is not supported by the evidence.

The offer letter for trade finance facility, exhibit A, the loan agreement signed by both parties states in the second page how the loan shall be secured in subparagraphs (a) to (f) therein. In sub-paragraph (e) it states that the facility shall be secured by the “Execution of consent to criminal prosecution for issuance of any dud cheque”. It is obvious from the wordings of subparagraph (f) that the parties did not intend that the signing of the agreement should amount to the execution of such consent. If the parties had so intended, they would have clearly stated so, instead of requiring the execution of such consent as a security for the loan. It is glaring that by signing the offer he agreed to execute such consent as one of the security for the loan. There is no evidence of

the fact that such a consent was executed by the 1st respondent.

In any case, it is generally not a requirement of law, that a person reasonably suspected or accused of committing an offence must consent to his being prosecuted of the crime before a criminal process can be brought against him for that offence. If the act or omission of a party to a contract amounts to an offence, nothing in law precludes his or her criminal prosecution for that act or omission and nothing in law requires that he must consent to be prosecuted before any prosecution can be initiated against him. So the fact that the 1st respondent did not execute a consent to be criminally prosecuted for issuing any dishonoured or dud cheques on account of the loan contract is not a bar to any criminal prosecution against him if he issues dishonoured or dud cheques.

The question to be considered here is whether the six post dated cheques the 1st respondent was contractually bound to issue and submit to the appellant as part of the security for the monthly debt repayment of the loan became dishonoured and dud cheques in the circumstances of this case.

The undisputed and established

facts are that the 1st respondent took a loan of 9 million naira to finance the expansion of his business of Body Mechanics Physiotherapy & Wellness Centre situate at No. 4 Bawku Street, off Aminu Kano Crescent, Wuse II, Abuja, Federal Capital Territory, that the written loan agreement is contained in the letter titled “offer letter of trade finance facility” dated 24-1-2017, that the loan was to be repaid within 6 months (180 days) from the 27-1-2017 at the monthly interest rate of 10%, that as part of the security for repayment of the loan, the 1st respondent issued and submitted to the appellant post dated cheques representing the monthly debt repayments as required by the loan agreement, that the said cheques were to be encashed within the 6 months loan tenor, that the 1st respondent failed to repay the loan as agreed in the loan agreement and as at 15-11-2017, had repaid only N1,750,000.00, that the reasons the 1st respondent gave for its default in fully repaying the loan within the 6 months tenor was that he suffered business failure, that the 1st respondent contacted the appellant and wrote requesting for more time to enable him pay the

loan and also asked for a rescheduling of the loan payment, that in addition to impounding and detaining the 1st respondents vehicle, Hyundai Santa Fe SUV which was a collateral for the loan and taking other steps to recover the debt, the appellant paid in the 6 posted cheques issued it by the 1st respondent and other cheques issued by his guarantors for payment, the cheques were returned unpaid by the respective banks for insufficient funds in the said bank accounts and that following the persistent failure of the 1st respondent to fully liquidate the loan offer, the return of his post dated cheques and the guarantor’s cheques unpaid, the appellant laid a written criminal complaint with the Nigeria Police Force against him for the offence of issuing dud cheques.

The offence of issuing a dishonoured or dud cheque is created by Section 1 of the Dishonoured Cheques (offences) Act Cap D.11 LFN 2004 as follows-
“Any person who obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds

were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence.
2. Where any offence under this Act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer, servant or agent of the body corporate (or any person purporting to act in any such capacity), he, as well as the body corporate, shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.“
The 1st respondent has not shown or suggested that he had sufficient funds in his bank accounts to enable those cheques be paid or encashed when the appellant presented them for payment as agreed under the loan agreement. Rather Learned Counsel for the 1st respondent has argued that at the time they were issued, it was verily believed that there would be fund in the various accounts to satisfy the monthly payments and that the 1st respondent showed a desire to liquidate the debt by paying as much as one million seven hundred and

fifty thousand naira out of the principal loan of 9 million naira and accrued monthly interest of 10% of the outstanding debt with penalties. While that may be so, what is relevant is that when the cheques which were issued for the payment of the debt were presented for payment, the 1st respondent did not have sufficient funds in his various bank accounts to enable the cheques to be paid and the cheques were dishonoured by the respective banks. The fact that the debt to be repaid by the said cheques was a civil debt arising out of loan contract does not affect the criminal nature of the act of issuing a cheque that is dishonoured and becomes a dud cheque due to lack of sufficient funds in the bank account it is presented for payment from. It is clear from the foregoing that there was reasonable basis for the appellant’s criminal complaint against the 1st respondent to the Nigeria Police Force for issuing dud cheques. This Court, in cases with facts in pari material with our present cases namely; 5. Tambuwal v. FRN (2018) LPELR – 43971 (CA), 6. UT Financial Services Nig Ltd v. Hackit Nig Ltd & Anor (2019) LPELR – 47477 (CA), 1. River State Microfinance Agency v. Isokariari & Anor

(2018) LPELR – 44863 (CA), 2. Abraham v. FRN (2018) LPELR – 44136 (CA), 3. Olutide & Ors v. Hamzat & Ors (2016) LPELR – 26047, 4. Seed Vest Microfinance Bank Plc & Anor v. Ogunsina & Ors (2016) LPELR-41346 (CA) followed the decision of the Supreme Court in the leading case of Fajemirokun v. Commercial Bank Nig. Ltd & Anor (2009) 2 – 3 SC 58 to hold that when a cheque is dishonoured upon presentment for the reason of lack of sufficient funds in the bank account from which it is to be paid, it provides a reasonable basis for a criminal complaint against the drawer for issuing a dud or dishonoured cheque, irrespective of the fact that the cheque was initially issued as a post dated cheque in discharge of a written contractual obligation to secure or guarantee the payment of a loan.

Contrary to the above cited judicial authorities, the trial Court held that the fact that the cheques were dishonoured cannot overshadow the predominance of the civil features of the matter and transform it to a criminal affair. The full text of the part of the judgment containing that holding

reads thusly- “All the foregoing establish that there was a predominantly civil, contractual or commercial transaction and relationship between the Appellant and the 3rd Respondent. The Applicant provided collateral for the loan, as acknowledged in paragraph 5(i) of the 1st, 2nd and 4th Respondents’ counter affidavit. The Applicant explained the cause of his default in repaying the loan according to schedule. The parties actually went into negotiation to facilitate total liquidation of the loan, as evident in the correspondences between the Appellant and the 3rd Respondent, especially Exhibit B, C and D attached to the Originating Motion.
It is noteworthy that the Applicant in paragraph 31 of the affidavit in support of Motion stated that he has paid the sum of N1,750,000 out of his total indebtedness to the 3rd respondent. He further disclosed in paragraphs 27 and 28 of the same affidavit that the 3rd respondent seized his brand new vehicle valued at N17,795,000. The 3rd respondent in paragraphs 6, 7 and 10 of its Counter-Affidavit confirmed seizure of the Appellant’s car as a collateral/security for the loan facility granted to him

by the 3rd respondent.
The highlighted evidence goes to show the dominance of the features of a purely contractual and civil transaction, devoid of any entrenched elements of criminality on the part of the Applicant. The fact of dishonoured cheques cannot overshadow the predominance of civil features of the matter and transform it to a criminal affair as conceived by the respondents.
In my humble view, the respondents adopted a very harsh and highhanded approach to the matter. Besides hounding the Appellant’s sureties/guarantors to the loan facility, most especially the Appellant’s wife, they went ahead to impound his car, whose uncontested value, even at N13 Million, outstrips the total value of the loan of N9 million. This is also despite the Applicant’s uncontroverted assertion in paragraph 31 of his affidavit in support that he has already made part-payment of the sum of N1,750,000. The Applicant was thus, put to double jeopardy.
Given the circumstances, what then could be said to be the justification for the involvement of the Police? While the Petition written by the 3rd Respondent is acknowledged, the 1st and 2nd

respondents had a duty to peruse it and ascertain whether there was predominance of criminal ingredients before taking any decisive step. It is however clear that they were not discerning enough. Otherwise, they should have realised that the negotiation between the Applicant and the 3rd Respondent, as exemplified by Exhibits B, C and D annexed to the Originating Motion served as pointer to reaching compromise, thus negativing existence of criminality. Further, the Applicant’s claim that he repaid part of the loan has nether been denied nor challenged. The acceptance of such part-payment should have been construed as readiness to compound a criminal offence, if any.
In the light of the foregoing, I am convinced that the Respondents did not act properly in this matter. Therefore, the assertion that the 1st, 2nd and 4th Respondents were merely carrying out their statutory duty cannot avail them. The respondents, indeed law enforcement agents/agencies are bound to keep within the dictates of the law and must not be reckless while discharging their statutory functions. See Odogu v. A-G., Federation (1996) 6 NWLR (Pt. 456) S.C. 508.
The Court have

severally held that the Police has no business in enforcement of debt settlements or recovering of civil debts for banks or anybody. See Oceanic Securities Int’l Ltd v. Balogun (2012) All FWLR (Pt. 643) 1880 at 1806-1907, paragraphs F-A. See also Diamond Bank Plc v. H.R.H. Eze (Dr) Peter Okpara & Ors. (2018) LPELR – 43907 (SC) at pages 18 – 30, paragraphs B-B.
I am satisfied in the instant case that the Respondents grossly abused the fundamental rights of the Applicant. The law is trite that the Court has a duty to grant redress to any person who has successfully proved that any of his fundamental rights has been, is being, or likely to be contravened or infringed. See Igwe v. Ezeanochie (2010) 7 NWLR (Pt. 1192) CA 61 at 94, Paragraphs D-E.
In the Originating Motion, I proceed to make the following orders:
1. That Reliefs I, II and III are granted as prayed.
2. The Applicant in Relief IV asked for N50 Million exemplary damages against the Respondents and in Relief V, for N25 Million as general damage for “wanton desecration of the Applicant’s fundamental rights.”
It has been held that any

trespass to the person however slight, gives a right to recovery of damages. That even where there has been no physical injury, substantial damages may be awarded for injury to the person’s dignity or for discomfort or inconvenience. That damages are given to vindicate the Appellant’s right, even if no pecuniary damage is suffered. See DURUAKU v. NWOKE (2015) 15 NWLR (pt. 1483) C.A. 417
In the instant case, the Applicant in paragraphs 38-45 of the supporting affidavit deposed that he was arrested and detained on 17-11-17 to 4.30pm on 20/11/17 by the Respondents. That he was dehumanized and suffered server malaria, sepsis and pneumonia. Exhibit ‘M’ annexed to the said affidavit, is a receipt issued in the name of the Applicant by Lifepoint Medical Centre, which is referred to in paragraph 38 of the affidavit. It shows that the Applicant made payment for his admission at the hospital.
Having regard to the foregoing, I award the sum of N20 Million as exemplary damages to the Applicant against the Respondents. Award of general damages is declined.
3. Relief VI of Public apology is granted, but to be published in two (2)

National Daily Newspapers, to wit: The Punch Newspaper and the Nation Newspaper
4. The cost of this action, assessed at N400,000.00 (Four Hundred Thousand Naira Only) is awarded to the Applicant.
Orders accordingly”.

This judgment of the trial Court is wrong and cannot stand in the face of the above cited decisions of the Supreme Court and this Court. It is glaring from the tenor of the judgment that its decision that the respondents abused the fundamental rights of the 1st respondent is influenced by its holding that no crime was committed by the 1st respondent, that there was no basis for the appellant’s criminal complaint against the 1st respondent and that there was no basis for the involvement of the Nigerian Police Force in the matter as no offence was committed to warrant the investigation of the complaint by the police. This Court has adjudged herein that the trial Court’s holding that there was no basis for the complaint and the investigation of the complaint is wrong.

I have carefully read and considered all the affidavit evidence before the Court on the arrest, detention, humiliation and dehumanisation of the

1st respondent and disruption of his business. His affidavit evidence of these facts were disputed by the counter affidavits of the respondents at the trial.

The 1st respondent deposed in paragraphs 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47 of the affidavit in support of the originating motion that-
“34. However on the 17/11/2017, the 3rd Respondent procured the services of the men and officers of the 1st and 2nd Respondents who came to the clinical premises, whilst patients were still being treated, chased out the staff and patients being attended to, and thereafter locked up the clinical premises.
35. I was handcuffed from my business premises by the Respondents in the full glare of my staffs and some of my patients at the time and taken away.
36. They first took me to their office located at Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory Command where they proceeded to handcuff my hands to and with that of a hardened criminal and then detained me in their detention facility at the Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory

Command Opposite Old CBN Headquarters, Garki II, Abuja, FCT with hardened criminals from 17/11/17 to 20/11/17.
37. Thereafter I was taken on bail by a surety and since then, officers of the 1st and 2nd respondents have consistently harassed me and continued to disrupt my business activities by often requesting for me and keeping me at their offices from morning till close of work.
38. After my release from detention, I fell seriously and critically ill as a consequence of the most dehumanizing conditions I was subjected to while I was detained by them. I was on hospital admission for a period of thirteen days 25/11/17 to 7/12/17 with an additional two weeks for recuperation at home.
39. I was diagnosed of severe malaria, sepsis and pneumonia after my release from the detention facility of the 1st and 2nd respondents, which detention was at the instance of the 3rd respondent. I have been on medication since that time till this moment.
40. I am a law abiding business person and there is no reasonable suspicion that I have committed any offence that called for my arrest and detention by the Respondents.
41. I was not caught in the course

of committing any crime and there is no reason to suspect me of any intention to commit any offence.
42. I was not insane neither was I suffering from any contagious disease for which I was arrested and quarantined.
43. There was no Court order or warrant of arrest issued against me for me to be arrested over an offence or for the purpose of incarcerating me.
44. I was not arrested for purpose of being arraigned before any Court of Law and over the suspicion of having committed a crime.
45. I suffered mental and physical torture and my health was affected as a result of my arrest and detention by the 1st, 2nd and 4th Respondents at the instance of the 3rd respondent.
46. The officers and men of the 1st and 2nd Respondents are from the Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory Command.
47. Since I was released from the detention facility of the 1st, 2nd and 4th Respondents on 20-11-2017, I have been severally directed by the 1st, 2nd and 4th Respondents to report at their office to discuss repayment plans of the loans I owe the 3rd Respondent. I have lost count of the times I was so

directed. The last of such of directive before this my deposition was on 10-1-2018 with threats of further directive and threats of detention.“

The 1st, 2nd and 4th respondents responded in paragraphs 5(a) to (v) of their counter affidavit that-
“5. That she was rightly informed by the 4th Respondent, being the investigating Police Officer, during briefing in our office, on the 25th day of May, 2018, at about 11:00am and she verily believe him to be true as follows:-
(a) That the 1st, 2nd and 4th Respondents vehemently denies all the averments as stated in the affidavit in support of Applicant’s Originating Motion on notice dated the 9th day of February, 2018.
(b) That the 1st, 2nd and 4th Respondents admits paragraphs 3, 4 and 46 of the Applicant’s affidavit in support of Originating Motion on Notice.
(c) That the 1st, 2nd and 4th Respondents admits paragraph 33 of the said affidavit only to the extent that the 3rd Respondent wrote a petition to the 1st, 2nd and 4th Respondents against six persons which includes the Applicant in this suit on allegation of fraud.
(d) That the 1st, 2nd and 4th Respondents

vehemently denies paragraphs 34, 35, 36, 37, 38, 47 and 48 of the Applicant’s affidavit in support of Originating Motion on Notice.
(e) That in particular response to paragraph 43 of the said affidavit, the Nigeria Police and its agents have the powers to arrest based on suspicion or complaints by persons.
(f) That the 1st, 2nd and 4th Respondents only got involved in this matter based on complaint of fraud laid by the 3rd respondent in this suit.
(g) That Abuja Leasing Company (3rd Respondent) wrote a petition dated 9th day of June, 2017 against six persons including the applicant in this suit for obtaining by false pretence. (A copy of the petition is hereby attached and marked as exhibit OMAP A)
(h) That a case of criminal breach of trust, cheating and issuance of dud cheque was also reported by Mr. Stephen Teryima of Abuja Leasing Company Limited (3rd respondent) in this suit on the 9th day of June, 2018.
(i) That the report was referred to the investigation department which is the department of the 4th respondent.
(j) That when the report was referred to the said department, the file was transferred to the 4th

transferred to the 4th respondent and he and his team immediately took over and proceeded with investigation.
(k) That investigation revealed that the 3rd respondent (Abuja Leasing Company) made a complaint that the Applicant (Dr. Ojetunde Akintomi Mayowa) took a loan of N9,000,000.00 (Nine Million Naira) only, from its company with the promise that he will pay in installments and there were sureties who also guaranteed the said loan.
(l) That Dr. Ojetunde Akintomi Mayowa pledged his vehicle, Hyundai Santage Jeep reg. No. YAB 874 PK, with the 3rd defendant as collateral for the loan.
(m) That Dr. Ojetunde Akintomi Mayowa issued cheques to cover the amount with the intention to settle the credit facility by installment payments.
(n) That when the said cheques were presented to Keystone Bank, they were dishonoured, reason being that the funds in the account were insufficient. (Copy of the cheques are hereby attached and marked as exhibit OMAP B).
(o) That he immediately invited Dr. Ojetunde Akintomi Mayowa the applicant in this suit.
(p) That Dr. Ojetunde Akintomi Mayowa admitted taking a loan facility and issued cheques in that

respect and he made his statement under word of caution. (Copy statement is hereby attached and marked as Exhibit OMAP C).
(q) That the representative of the 3rd respondent also made his statement under word of caution. (Copy of the said statement is hereby attached and marked as Exhibit OMAP D).
(r) That in furtherance of the investigation, the 4th respondent made an application via a letter dated 23rd day of January, 2018, to Keystone Bank in other to verify the statement of the 3rd Respondent and in the said application, he requested for the certified true copy of Account opening mandate of the Applicant, certified true copy of statement of account from 1st March to 31st December, 2017, to also confirm if the attached cheque number 29404790, 29404791, 29404792, 29404793 were actually presented and reasons for non-payment if any. (The letter is hereby attached and marked as exhibit OMAP E).
(s) That in response to the said letter dated 23rd January, 2018, Keystone Bank replied via a letter dated 20th February, 2018, and attached the certified true copies of the documents requested as aforementioned stating that the said Cheque Numbers were

presented and returned unpaid because the account was not funded as at the time the cheques were presented. (The letter is hereby attached and marked as Exhibit OMAP F).
(t) That the 1st, 2nd and 4th Respondents did not in any way forcefully arrest, harass, intimidate, victimize and bundle the Applicant or detain him for any reason whatsoever.
(u) That the 1st, 2nd and 4th Respondents are responsible and law abiding Federal Government Agency and officers.
(v) That the 1st, 2nd and 4th respondents only carried out investigations based on the report and petition by the 3rd respondent and nothing more.“

The 3rd respondent at the trial deposed in paragraphs 14 to 21 of its counter affidavit that –
“14. That addition to the deposition made in par. 14 above, the cheques issued to the 3rd Respondent by the Applicant and his guarantors turned out to be dud cheques because they were all returned due to insufficiency of funds in their different accounts.
15. That the 3rd Respondent wrote a petition to the Nigerian Police Force complaining about the dud cheques issued to it by the Applicant and his guarantors.

That based on the petition, the Applicant was invited in the course of the investigations conducted by the Nigerian Police Force.
17. That the 3rd Respondent had a reasonable belief that the Applicant committed an offence by issuing a dud cheque.
18. That it was this reasonable belief that prompted the 3rd Respondent to write the petition.
19. That the 1st and 2nd Respondents have the statutory duty to investigate any allegations made against any individual or any other citizen of this country.
20. That as stated earlier, the 1st, 2nd and 4th Respondents only investigated the allegations arising from the activities of the applicant herein.
21. That this suit is merely a ploy by the Applicant to prevent and/or restrict the 1st, 2nd and 4th respondents from performing their statutory duties.”

The trial Court in its judgment did not determine the said issue of the arrest, detention, humiliation and dehumanisation of the 1st respondent and the disruption of his business by the respondents at the trial. It made no finding of those facts. It merely stated that “In the instant case, the Applicant in paragraphs 38-45 of the

supporting affidavit deposed that he was arrested and detained on 17-11-17 to 4.30pm on 20/11/17 by the Respondents. That he was dehumanized and suffered server malaria, sepsis and pneumonia. Exhibit ‘M’ annexed to the said affidavit, is a receipt issued in the name of the Applicant by Lifepoint Medical Centre, which is referred to in paragraph 38 of the affidavit. It shows that the Applicant made payment for his admission at the hospital.”

It had the legal duty to resolve the disputed facts one way or the other and make specific findings of facts. Without specifically finding as a fact that the 1st respondent was arrested, detained, humiliated and dehumanised and his business disrupted, there would be no basis for the award of reliefs I, II, III, IV and VI. The reliefs read thusly –
“i. A DECLARATION that the arrest of the Applicant from his business premises in handcuffs at about 11am on the 17th day of November, 2017 by the officer and men of the Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory Command without a Court order or warrant of arrest at the instance of the 3rd respondent

and his detention thereafter, in their premises, being Nigeria Police Force, Federal Capital Territory Command, Opposite Old CBN Headquarters, Off Ladoke Akintola Boulevard, Garki II, Abuja from the time of arrest on the 17th day of November, 2017 to about …30pm on the 20th day of November, 2017, without a Court order and in respect of a loan transaction between Abuja Leasing Company limited and the Applicant with a view to recovering the debt/monies for the 3rd Respondent is unlawful, illegal, inimical, unwarranted, unconstitutional, null, void and amounts to a violation of the Applicant’s fundamental rights to human dignity and integrity of his person, his personal liberty and freedom of movement as enshrined in and guaranteed by Sections 34(1), 35(1) and 41 of the Constitution of the Federal Republic of Nigeria as amended; Articles 4, 6 and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act and Section 8(2) of the Administration of Criminal Justice Act 2015.
ii) A DECLARATION that the continuous harassment and intimidation of the Appellant by the men and officers of the 1st and 2nd Respondents

by their continuous acts of ordering and directing that Applicant be present at or report to any of their premises at the instance of the 3rd Respondent or to any such other premises however designated or sought for by the 1st, 2nd and 4th Respondents on a matter absolutely based on some civil/contractual/commercial relationship to with loan facility between the Applicant and the 3rd Respondent is illegal, unwarranted, inimical, null, void and ultra vires the powers of the 1st, 2nd and 4th Respondents, and as such amounts to a violation of Applicants fundamental rights to wit his right to personal liberty, equality before the law, protection of the law and freedom of movement as guaranteed and protected by Sections 34(1), 35(1), 36(8) and 41 of the Constitution of the Federal Republic of Nigeria as amended and Articles 3(1) and (2), 4, 5, 6 and 7(2) of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act and Sections 8(2) and 112(4) and 5(c) of the Administration of Criminal Justice Act 2015.
iii. AN ORDER OF PERPETUAL INJUNCTION prohibiting, restraining and directing the 1st, 2nd and 4th respondents whether by

themselves, their agents, servants, privies, representatives, officers or by whosoever and howsoever described acting for, or through them from further arresting, detaining, intimidating, harassing, victimising or inviting the Applicant over any petition flowing from the contractual/commercial and civil relationship between the Applicant and the 3rd Respondent; and/or from in any way infringing on the Applicant’s rights over the issues contained in the Complaints/Petitions of the 3rd respondent which issues bother on failed contractual/civil relationship between the applicant and the 3rd respondent as same does not and will not serve any public purpose or interest.
iv. The sum of Fifty Million Naira Only (N50,000,000.00) against the Respondents as exemplary damages in favour of the Applicant and for the wanton desecration of the rights of the Applicant by the 1st to 3rd Respondents.
vi. PUBLIC APOLOGY by the 1st to 3rd respondents to the Applicant, which apology should be published in three (3) National Daily Newspapers to wit Sun Newspaper, Punch Newspaper and the Nation Newspaper in accordance with the provisions of Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended

and for the infringement and wanton desecration of the fundamental rights of the Applicant.“

Even where there is reasonable basis for a criminal complaint that a person has committed an offence, the investigating police officers are mandatorily bound to observe his or her fundamental rights in the investigation of the complaint. His arrest and detention must not be contrary to the Administration of Criminal Justice Act and Sections 33(1), 34(1)(a), 35 and Section 37 of the 1999 Constitution of the Federal Republic of Nigeria. Any investigative process including arrest and detention that violates any of the above provisions of the Constitution or any other law shall be illegal and entitle the suspect to remedies for such violation.

A trial Court cannot grant remedies for such violations on the basis of the disputed evidence of one side, without considering the evidence of the adverse party and without any specific finding of the existence or non existence of the fact. It is the duty of a trial Court to consider the evidence of all sides in a case concerning every material issue. See Adebayo v. Shogo (2005) SCNJ 60, Ogunyade v. Oshunkeye (2007) 12 NWLR (Pt. 1057) 218 (SC) and Nwankudu v. Ibeto (2010) LPELR- 4391 (CA). The failure to consider the evidence in the counter affidavits of the respondents at the trial before granting the relief violates the respondents’ rights to a fair hearing. See Mafimisebi v Ehuwa (2007) 1 SCNJ 258.
The decision that the 1st respondent’s fundamental right was violated and the grant of the reliefs without any specific finding of the fact that the 1st respondent was arrested, humiliated, detained, dehumanised and is being continuously harassed, is baseless.

Since the trial Court failed to evaluate the evidence of both sides on whether the 1st respondent was or was not arrested, detained, dehumanised and continuously

harassed and did not make any specific finding of facts, I have considered if I should order a retrial of this case by the trial Court as the Supreme Court has held in Ogundepo & Anor v. Olumesan (2011) LPELR – 1297 (SC), that when the trial Court fails to make specific findings of facts before it and also fails to draw inferences from facts before it, a retrial can be ordered. But I think that to do so will unnecessarily protract the trial of this dispute and would therefore occasion injustice to the parties herein. This Court is in a position to do justice after considering the affidavit evidence of both sides. The Supreme Court in Ogundepo & Anor v. Olumesan held that a retrial should not be ordered if the trial will be unduly protracted and the appellate Court is in as good a position as the trial Court to decide the case on the evidence of all sides.

Let me now do what the trial Court failed to do by considering the evidence of both sides on the point and determining the issue on the basis of such consideration.

I have reproduced the affidavit evidence of all parties on this issue.

The evidence of the 1st respondent that he

was arrested from his business premises and how he was arrested is in paragraphs 34 to 36 of his affidavit in support of his originating motion wherein it is deposed that-
“34. However on the 17/11/2017, the 3rd Respondent procured the services of the men and officers of the 1st and 2nd Respondents who came to the clinical premises, whilst patients were still being treated, chased out the staff and patients being attended to, and thereafter locked up the clinical premises.
35. I was handcuffed from my business premises by the Respondents in the full glare of my staffs and some of my patients at the time and taken away.
36. They first took me to their office located at Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory Command where they proceeded to handcuff my hands to and with that of a hardened criminal and then detained me in their detention facility at the Criminal Investigation Department of the Nigeria Police Force, Federal Capital Territory Command Opposite Old CBN Headquarters, Garki II, Abuja, FCT with hardened criminals from 17/11/17 to 20/11/17.“

The 2nd to 3rd respondents in

their counter affidavit generally denied the above paragraphs of the affidavit of the 1st respondent and stated that they have the powers to arrest a person reasonably suspected of committing an offence, that they invited the 1st respondent to their office and that they did not in any way forcefully arrest, harass, intimidate, victimize and bundle the applicant or detain him for any reason whatsoever.

The appellant in its counter affidavit as 3rd respondent at the trial, generally denied the above reproduced paragraphs of the 1st respondent’s affidavit and stated that the 1st respondent herein was invited by the 2nd to 3rd respondents herein during their investigation of its criminal complaint against the 1st respondent.

The fact of the 1st respondent’s arrest was deposed with the surrounding circumstances of how he was arrested and at his business premises in the presence of his staff and clients.

The 2nd to 3rd respondents did not answer in point of substance the 1st respondent’s deposition in paragraphs 34 to 36 of his affidavit on how he was arrested. They did not state how they effected their invitation of the 1st

respondent to their office, from where they invited him, when he arrived at their office and when and how he left their office. They did not say that he willingly went to their office upon their invitation. It is trite law that where a party denies an allegation of fact he shall not do so generally or evasively. He shall answer the point of substance. A general denial of facts is not an effective denial of such facts. SeeSanusi Bros (Nig) Ltd v. COTIA C.E.I.S.A (2000) 6 SC (Pt 111) 43 and Macaulay v. NAL Merchant Bank Ltd (1990) 6 SC 206. To simply state without more that they invited the 1st respondent and did not forcefully arrested and detain him does not sufficiently deny the detailed narratives of the 1st respondent in paragraphs 34 to 36 on how he was arrested, handcuffed and taken away from his business premises on 17-11-2017 and detained till 20-11-2017. The 1st respondent established by preponderance of affidavit evidence that the 2nd to 3rd respondents on 17-11-2017 arrested him from his business premises, handcuffed his hands in the full glare of his staff and patients and took him away to the Criminal Investigation Department, Federal Capital

Territory Command where he was detained from 17-11-2017 to 20-11-2017.

In addition to the evidential burden to disprove the case made by the applicant in his affidavit, the 2nd to 4th respondents herein who carried out the arrest of the 1st respondent had the inherent legal burden as the arresting authority to show that their arrest of the applicant complied with Sections 34(1)(a), 35 and 37 of the 1999 Constitution.
The detention of the 1st respondent for three days from 17-11-2017 to 20-11-2017, violate his fundamental right not to be detained beyond one day, since the fact is common knowledge and does not require proof by virtue of Section 124 of the Evidence Act 2011 that the Courts are within forty kilometres radius from the Criminal Investigation Department, Federal Capital Territory Command where he was detained. This right is guaranteed by Section 35(4) and 5 of the 1999 Constitutionwhich provides as follows:-
“(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of-
(5) In subsection (4) of

this section, the expression “a reasonable time” means-
(a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and.”
The 2nd, 3rd and 4th respondents did not elicit evidence to show that during the arrest and detention of the 1st respondent they observed the rights guaranteed him by Section 35(3) of the 1999 Constitution which provides that:-
“(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.“
The failure of the 2nd, 3rd and 4th respondents to show that the constitutional due process for the arrest and detention of the 1st respondent was complied with, give credence to the evidence of the 1st respondent that he was forcefully arrested handcuffed and taken away from his business premises in the public glare of his office staff and clients. There is nothing to show that the 2nd, 3rd and 4th respondents herein informed the 1st respondent in writing within twenty four hours or

at all of the facts and grounds for his arrest or detention as required by Section 35(3) of the 1999 Constitution and Section 6(1) of the Administration of Criminal Justice Act (ACJA).
The handcuff of the 1st respondent by the 2nd to 4th respondents herein during his arrest by them, when there is nothing to show that there was reasonable apprehension of violence or attempt to escape or that it was necessary for his safety or that it was ordered by a Court violates Section 5 of the Administration of Criminal Justice Act (AJCA) which provides that-
“5. A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
a) There is reasonable apprehension of violence or an attempt to escape;
b) The restraint is considered necessary for the safety of the suspect or defendant or
c) By order of a Court.“
For the above reasons, I hold that the 1st respondent’s arrest and detention by the 2nd, 3rd and 4th respondents is unconstitutional and illegal.

Having held that there was reasonable basis for the criminal complaint by the appellant against the 1st respondent and the investigation of the complaint by the 2nd,

3rd and 4th respondents, the grant of reliefs (ii) and (iii) by the trial Court cannot be sustained. It is hereby set aside.

There is no appeal against the trial Court’s decision that the award of general damages is declined. By not appealing against it, the parties herein have accepted it as correct, conclusive and binding upon them. There is equally no ground of this appeal complaining against the decision of the trial Court awarding the sum of 20 million naira as exemplary damages to the 1st respondent and the decision of the trial Court that the 2nd, 3rd and 4th respondent publish a public apology to the 1st respondent in the Punch and Nation Newspapers. By not appealing against these decisions it is accepted as correct, conclusive and binding upon them. As held by the Supreme Court in Iyoho v. Effiong (2007) 4 SC (Pt. 111) 90, a decision of the Court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding.” See also Dabup v. Kolo (1993) 12 SC, Biariko & Ors v. Edeh-Ogwuile & Ors (2001) 4 SC (Pt. 11) 96.

The omnibus grounds of appeal is not a valid complain against the

specific finding or holding of the trial Court that the appellant, 2nd, 3rd and 4th respondents are liable to pay 20 million naira exemplary damages to the 1st appellant. The text of the ground contained in the amended ground of appeal reads thusly-
“The judgment is against the weight of evidence.
PARTICULARS:
a) The trial Court failed to evaluate the evidence of the Appellant.
b) The 1st Respondent in his Affidavit and Documentary Evidence admitted that he pledged his care as a collateral but the trial Court in it judgment held that the car was impounded.“
If the 2nd, 3rd and 4th respondents were desirous of appealing against the above mentioned decisions they should have raised distinct grounds of appeal complaining against each of the decisions. As held by the Supreme Court in Akinlagun & Ors v. Oshoboja & Anor (2006) 5 SC (pt. 11) 100 an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact. It is for this reason that the legitimate complain in the general ground is limited to the appraisal of the

evidence and not on finding or non finding of a specific fact or issue can only be raised by a substantive ground of appeal. This restatement was made by the Apex Court in Osolu v. Osolu & Ors (2003) 6 SC (Pt. 1).
For the above reasons I cannot interfere with the decision of the trial Court that the appellant, 2nd, 3rd and 4th respondents herein pay 20 million naira exemplary damages to the 1st respondent and that they publish a public apology in the Punch and Nation daily Newspapers.

In the light of the foregoing, I hold that this appeal succeeds in part. The part of judgment of the Federal High Court delivered in suit No. FHC/ABJ/CS/117/2018 delivered on 14-12-2018 that granted reliefs (ii) and (iii) is hereby set aside.

The part of the judgment awarding 20 million naira as exemplary damages against the appellant, 2nd and 3rd respondents herein and the part of the said judgment that granted reliefs (i) and the order that a public apology by the 2nd to 4th respondents herein be published in the Punch and the Nation Newspapers are hereby affirmed and upheld.

Parties shall bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by learned brother, EMMANUEL AKOMAYE AGIM, JCA and I am in total agreement with the reasoning and conclusion arrived at in the lead Judgment. I also allow the appeal in part and I abide by the orders made in the lead Judgment.

Appearances:

I.E. UZUEGBU, ESQ., with him, JENNY ASSOU, ESQ. For Appellant(s)

A.T. KEHINDE, SAN with him, ELOKA OKOYA, ESQ., and FAITH SAIKI, ESQ. for the 1st Respondent

UMAR NASIR, ESQ. for the 2nd to 4th Respondents For Respondent(s)