ALHAJA KUDIRAT IJAIYA IBIYEYE & ANOR. V. ABDULLAHI GOLD & ORS.
(2011)LCN/4965(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of December, 2011
CA/IL/M.95/2010
RATIO
DUTY OF THE COURT: DUTY OF THE COURT TO CONSIDER ALL THE ISSUES RAISED BEFORE IT
See Adebayo & Ors. v Shogo (2005) 2 – 3 SCNJ 60 @ 67 thus:
“The beauty, elegance and romance of our adjudicatory system is that the court should hear all sides, carefully compare the weight of the evidence given, make a proper appraisal before determining preponderance after such painstaking considerations of all issues addressed upon it…. …,.” See also Mafimisebi & Anor v Ehuwa & Ors. (2007) 1 SCNJ 258 – 259 per Musdapher, J.S.C. (Now C.J.N.) thus: “By his failure to clearly determine the issue in controversy between the parties by not considering all evidence adduced before him, the learned trial Judge had failed in his duty of just fair adjudication…. The learned trial Judge was wrong to have failed to consider the evidential values of the documents ……” PER JOSEPH SHAGBAOR IKYEGH, JCA
EVALUATION OF EVIDENCE: POSITION OF THE LAW WHERE THE LOWER COURT FAILS TO EVALUATE THE DOCUMENTARY EVIDENCE BEFORE IT
The failure of the court below to evaluate the said documentary evidence may not necessarily vitiate its judgment. What the court below left undone by its non consideration of the said documentary evidences will saddle the Court with the duty to step into the place of the court below and assume the responsibility of appraising the documentary evidence under section 15 of the Court of Appeal Act, 2005, as amended, which stipulates inter-alia that: “The court of Appeal…..,.,… generally shalf have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of Appeal as a court of first instance and may rehear the case in whole or in part. …..” See also U.B.A. PLC. V. BTL Industries Ltd.(2006) 19 NWLR (Pt.1013) 61 at 137 thus: “There rs nothing on the record to show that these documents on which’ the appellant relied heavily were given the due consideration they deserved, The appellant thus had good cause to complain, The Court of Appeal appears to have also fallen into the same error of not considering the exhibits. This court has a duty to examine these documents and that is what I have done. See Imah v Okogbe (1993) 9 NWLR (Pt.316) 159; Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1.” PER JOSEPH SHAGBAOR IKYEGH, JCA
WITHOUT PREJUDICE: EFFECT OF A DOCUMENT MARKED “WITHOUT PREJUDICE”
Exhibit B was marked “WITHOUT PREJUDICE”. A letter or correspondence so marked means “Without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.” (Blacks Law Dictionary, seventh Edition page 1596). Speaking of the significance of the words “WITHOUT PREJUDICE” in a document, the Supreme Court (Nnaemeka- Agu, J.S.C., now of blessed memory) held inter alia in the case of Ashibuogwu v, A-G Bendel State and Another (1988) N.S.C.C. (Pt.1) 439 at 462 that:
“The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “Without prejudice” and are inadmissible against the parties in that suit………………………………. The learned authors of Phipson: On Evidence (11th Edn.) put it thus at P.307 in para . 679. “Offers of compromise made expressly or impliedly “Without prejudice” cannot be given in evidence against a party as admissions., the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties.” A decision of the Court (Enugu Judicial Division) also pointedly held (per Fabiyi, J.C.A (now J.S.C.) in the case of Evuleocha v. African Continental Bank PLC at page 684 (supra) cited by the appellants’ learned counsel that: “The applicant needs to appreciate the purport of a document marked “without prejudice”. Where an offer is made ‘without prejudice’, it is meant as a declaration that no right or privilege of a party concerned are to be considered as thereby waived or lost. Such a document has no place in legal proof is of an assertion. Generally, it inadmissible in evidence and ‘not worthy of consideration even if put in through the back door.
See also the case of Ofulue v. Bossert (2009) UKHL 16 at pages 1, 2, 5, 20, 21, 25, 34 – 36. PER JOSEPH SHAGBAOR IKYEGH, JCA
COUNTER-AFFIDAVIT: EFFECT OF UNREFUTED DEPOSITIONS IN A COUNTER-AFFIDAVIT ON THE ADVERSE PARTY; ATTITUDE OF THE COURTS WHERE NO REPLY AFFIDAVIT IS FILED AGAINST THE FACTS IN A COUNTER- AFFIDAVIT
It is trite that unrefuted depositions in a counter-affidavit are taken as admitted by the adverse party. See Anah vs Anah (2008) 9 NWLR (Pt 1091) 75 @ 83 thus: From the uncontroverted counter-affidavit evidence of the respondent, I have no other option other than to accept same as truth.,’ See also Asol Nigeria Limited vs Access Bank (Nig) Plc (2009) 10 NWLR (Pt.1149) 289 @ 307, where it was held (Per Rhodes-Vivour, J.C.A., now J.S.C.) inter-alia that: Where no reply affidavit is filed the facts in the counter- affidavit are deemed admitted and established to the satisfaction of the court. See Egbuna vs Egbuna (1989) 2 NWLR (Pt.106) p.773; Soy Agencies vs Metalum Ltd (1991) 2 NWLR (Pt. 177 p. 35; Jumbo Nwanganga vs M.G. Imo State (1982) 3 NWLR (Pt.59) p. 185. See again, First Bank of Nigeria Plc & Anor vs Ndarake and Sons (Nig) Ltd & Anor (2009) 15 NWLR (Pt. 1144) 406 @ 414 – 414. PER JOSEPH SHAGBAOR IKYEGH, JCA
JUSTICES
TIJJANI ABDULI.AHI (PJ) Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJA KUDURAT IJAIYA IBIYEYE
2. INSPECTOR-GENERAL OF POLICE Appellant(s)
AND
1. ABDULLAHI GOLD
2. RASAQ ADI
3. MUBARAQ ADI Respondent(s)
JOSEPH SHAGBAOR IKYEGH, JCA: (Delivering the leading Judgment): The appeal is in reaction to the judgment of the Federal High Court of Justice (court below) Ilorin, in Kwara State, declaring wrongful the detention of the respondents by the 2nd appellant acting on reports lodged to 2nd appellant’s agents by the 1st appellant and awarding assorted damages to the respondents against the 1st appellant for infringing the respondents’ fundamental right to personal liberty.
The court below also ordered the 1st appellant to tender public apology in two publications of any local newspaper circulating within Kwara State to the respondents for infringing their fundamental right to personal liberty. Assorted damages were further awarded to the respondents against the 1st appellant for the disruption of the quiet enjoyment of his moveable property (two motor vehicles):
In outline, a written report was made by the 1st appellant to 2nd appellant against the respondents for issuing post-dated dud cheques to the 1st appellant, a money-lender, as security for loan transaction and for threatening to kill the 1st appellant and to destroy her property.
The agents of the 2nd appellant acted on the written report. They arrested and detained the respondents for the purpose of investigation of the complaints. The respondents were eventually released from police detention by the agents of the 2nd appellant. They were not charged to court, 2nd appellants’ agents advised peaceful settlement of the dispute by the parties. .
The court below assessed the affidavit evidence before it. It reached the confusion that the relationship between the 1st, appellant and the respondents was contractual. It held further that the arrest and detention of the respondents and their chattel (two motor-vehicles) were not based on reasonable grounds suggesting they had committed criminal offence(s). The court below proceeded to enter judgment for the respondents in the terms afore stated.
A joint notice of appeal with seven grounds of appeal dated 15/11/2010, but filed on 18/11/2010, signed by Sheni Ibiwoye Esq and Taiye Oniyide Esq. (mistakenly described as “1st and 2nd respondent’s counsel)”, disclosed the gist of the appeal.
Appellants’ bulky brief of argument of 46 pages dated and filed on 14/03/2011, was prepared by their learned counsel, Sheni Ibiwoye Esq and Taiye Oniyide Esq to anchor the appeal. Three issues for determination were derived therefrom to wit:-
1. “Whether the learned trial judge was right when he failed to consider, appraise, refer to and evaluate all the exhibits tendered and relied upon by the 1st appellant in defence of the case made against her before arriving at his decision. If the answer to this issue is in the negative, whether the Appellants’ right to fair hearing has not been violated in the circumstance.
2. Whether the learned trial judge was right to have copiously cited and relied on exhibit “B” being a document clearly marked ‘WITHOUT PREJUDICE’, in entering judgment for the Respondents.
3. Whether from the totality of the evidence available at the lower court, the lower court was right to have held that the Appellants violated the Respondents’ fundamental right”.
Issue 1 was related to ground 1 of the notice of appeal, issue 2 to ground 2 thereof and issue 3 to grounds 3, 4, 5, 6 and 7 of the said notice of appeal.
The appellants canvassed on issue 1 that the documentary evidence of the 1st appellant sustaining her case in the court below that respondents issued dud cheques to her in Exhibits 3(1) – (9) pursuant to the debts credit safes transaction secured by written loan agreement and deed of guarantee in Exhibits 1(1) – (11) as well a letter of acknowledgement and undertaking in Exhibit 2 together with the letter of instruction, Exhibits 4(1) – (5), by the respondents for the transfer of fund to the 1st appellant to defray their indebtedness to her and the letter of harmonization of the indebtedness, Exhibit 5, were not evaluated by the court below; Exhibit 6, the petition written by 1st appellant against the respondents to the 2nd appellant dated 04/01/2010, alleging “criminal cheating, breach of trust, deceit, fraud, issuing of dud cheques, harassment, intimidation and threat of life and properties of the 1st appellant by the respondents” and the 1st to 2nd respondents’ written additional undertaking to the 2nd appellant in Exhibit 7 dated 20/01/2010, admitting issuing post- dated dud cheques to the 1st appellant together with the written additional statement of 1st respondent to the 2nd appellant in Exhibit 8, dated on 19/01/2010 and the 2nd respondent’s additional statement to the 2nd appellant in Exhibit 9 dated 19/01/2010, were equally not considered by the court below, as it did to the respondents’ documentary evidence in Exhibits A -A2- letter of instruction to transfer fund to 1st appellant maintained at oceanic Bank Plc, Exhibit B letter marked “WITHOUT PREJUDICE” containing several proposals, Exhibit C- letter of acknowledgement and undertaking to 1st appellant, Exhibit D- letter by respondents’ learned counsel to the 1st appellant dated 28/01/2010, and 1st appellant’s solicitors’ reply in exhibit D1 dated 10/02/2010, and another letter from the respondents’ solicitors in Exhibit E dated 10/02/2010.
The appellants canvassed further on issue 1 that the documentary Exhibits referred to above formed integral part of the case before the court below and the said court was bound to assess or evaluate them, as it they had bearing on the 1st appellant’s grouse against the respondents with emphasis on Exhibits 8 – 9 where the 1st and 2nd respondents respectively admitted their indebtedness of N24,730,000.00 (Twenty Four Million, Seven and Thirty Thousand Only) to the 1st appellant following the cases of Muhammed v. Abdulkadir (2008) NWLR (Pt. 1076) 111 @ 156, Omega Bank (Nig) Plc v O.B.C. Ltd (2002) 16 NWLR (Pt. 794) 483 @ 521, Karibo v Grend (1992) 3 NWLR (Pt,230) 426 @ 422 to 423 (?), Alao vs Kure (2000) 9 NWLR (Pt.672) 423 @ 432 UBA Plc v. BTN Ind. Ltd. (2006) 19 NWLR (Pt.1013) 61 @ 1137; and that the failure of the court below to consider the appellants’ documentary Exhibits in the same way it considered the respondents’ documentary Exhibits amounted to “biased” adjudication and deprived the appellants of fair hearing following the cases of Saidu v. Abubakar (2008) 12 NWLR (Pt.1106) 201 @ 252, Edet v. The State (2008) 14 NWLR (Pt.1106) 52 @ 67, New Res Int’l Ltd. v. Oranusi (2011) 2 NWLR (Pt.1230) 102 @ 118.
The appellants canvassed on issue 2 that the letter, Exhibit B, was for the exploration of avenues for the amicable settlement of the disputed indebtedness of the respondents to the 1st appellant written on 22/12/2009, by the respondent’s solicitor, after the arrest of the respondents, and marked “WITHOUT PREJUDICE” cutting down the level of the indebtedness to N7,300,000.00 ( Seven Million, Three Hundred Thousand only) and making some proposals to the 1st appellant to liquidate the indebtedness together with the accrued interest thereon by the respondents, which was yet to materialize in a concluded agreement, as the respondents had by Exhibit C, admitted the indebtedness of N24,730,000.00, higher than the proposal of N7,300,000.00 in Exhibit B, consequently the court below was wrong to rely heavily on Exhibit B to resolve the case against the 1st appellant contrary to the decisions in the cases of Evuleocha v ACB Plc (2001) 5 NWLR (Pt 707) 672 @ 684 – 685, Fawehinmi v N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 at 622 – 623.
The appellants canvassed on issue 3 that the court below found there existed a contractual relationship by way of loan agreements, supplemental agreements and deeds of guarantee between the respondents and the 1st appellant from which background rights and obligations between the parties were created entitling the 1st appellant to report the dispute to 2nd appellant on reasonable grounds of the respondents having on committed crime(s) against the 1st appellant, consequently sections 41(2)(a) and 44(2)(c) and (k) of the Constitution of Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) supported with the case Ikem v Nwagwugwu (1999) 13 NWLR (Pt. 633) 140 @ 149 to 150 availed the appellants. Further submissions on issue 3 stated that the evidence before the court below established respondent had knowingly issued dud cheques to the 1st appellant followed later by life threatening messages on the life and properties of the 1st appellant after respondent refused to do equity by making good the indebtedness, therefore the 1st appellant was right to report the alleged criminal acts to the 2nd appellant who rightly exercised his statutory power to investigate the complaints vide the cases of Anuruba v ECB Ltd (2005) 10 NWLR (Pt. 933) 321 @ 345, Allied Bank (Nig) Plc v Bravo W/A Ltd (1996) 3 NWLR (Pt. 439) 710 @ 731 (both on the maxim that he who seeks equity must do equity), Fawahemini v IGP (2002) 7 NWLR (Pt.767) 606 @ 670 (on the power of the 2nd appellant to apprehend suspects and to investigate the alleged commission of crimes), Fajemirokun v C.B (C.L) (Nig) Ltd (2002) 10 NWLR (Pt.774) 75 @ 110, 112 – 114 (on the failure of the respondents to establish their arrest and detention by the 2nd appellant acting on the alleged instigation of the 1st appellant), Ejefor v Okeke (2000) 7 NWLR (Pt 665) 363 @ 381 (on the court taking judicial notice of section 4 of the Police Act) and the string of cases of Adike v Obiareri (2002) 4 NWLR (Pt. 758) 537 @ 582 – 583, Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ 736 Onuoha v. The State (2002) 1 NWLR (Pt 748) 406 @ 424, Issa v The State (2007) 12 NWLR (Pt.1049) 582 @ 614, Ezembe v. Ibeneme (2004) 14 NWLR (Pt.894) 617 @ 689 (on the court below acting on speculation, unsubstantiated and extraneous matters to find the appellants liable for infringing the respondents’ fundamental rights to personal liberty and quiet enjoyment of their movables).
The respondents’ joint brief of argument dated and filed on 13/04/2011, was settled by their learned counsel, Mr. Gold. Two issues for determination were formulated in said brief as follows:
“1. Whether the lower court evaluated the evidence before it in holding that the fundamental rights of the respondents were violated by the appellants.
2. Whether the reference to and evaluation of Exhibit B by the lower court occasioned miscarriage of justice in the circumstance of this case”.
The respondents submitted on their issue 1 that the court below did not lose control of the dispute before it, that it made findings of fact backed by the credible affidavit evidence before it that the linchpin of the dispute pivoted on contractual relationship between the 1st appellant and the respondents bereft of criminality; that Exhibit B was “dissected” by the court below vis-a-vis Exhibits 5 and 6, while Exhibit C was considered in the face of Exhibit 7, the offshoot of Exhibits 8 and 9, therefore the court below adequately evaluated and appraised the evidence before it arrived at the correct conclusion that the appellant had violated the respondents’ fundamental rights to personal liberty and quiet enjoyment of movable property and the said conclusion, regardless cases of Isiaq v. Soniyi (2009) All FWLR (Pt.498) 347 @ 383, Obi vs. Uzoewulu (2009) All FWLR (Pt.499) 518 @ 525, Onimole vs. Adefola (2008) All FWLR (Pt 438) 438 @ 324, Baba Ahmed & Anor v Adamu & Anor (2009) All FWLR (Pt.473) 1257 @ 1270.
The respondents submitted on their issue 2 that the marking of Exhibit B “WITHOUT PREJUDICE” did not preclude the court below from deciding the question of its admissibility following the case of Grayshot Ent, Ltd v The Hon Minister of Agriculture, Federal Republic of Nigeria & 2 Ors. (2002) FWLR (Pt.106) 1055 @ 1069; that Exhibit B generated the repayment of N7.3 Million from two cheques issued by the respondents to the 1st appellant showing the offer made in Exhibit B matured into acceptance by the 1st appellant, therefore the court below was in order by acting on Exhibit B in its judgment; and that even if, without conceding that the court below wrongly acted by relying on Exhibit B in its judgment, such reliance did not occasion miscarriage of justice and did not amount to an error or mistake capable of vitiating the judgment of the court below following the cases of Onimole & Anor. V. Adefolabi & Anor. (2008) All FWLR (Pt. 438) 324 @ 345, Agbaji v. Ogbeh (2006) All FWLR (Pt.329) 941 and Kraus Thompson Organization Ltd v. University of Calabar (2004) All FWLR (Pt.209) 1148; and that, aside Exhibit B, the judgment of the court below would still stand on Exhibits E,C,7 of the respondents and Exhibits 2 and 6 of the 1st appellant, and the said decision should not be disturbed in consequence.
A joint reply brief of argument of the appellants dated and filed on 28/4/2011, contended in the main that the court below did not approach Exhibit B from the side of its admissibility in evidence but used it to ground its decision against the 1st appellant without her consent or waiver of the privilege conferred on her by the document contrary to the Grayshot Enterprises Ltd case (supra) also reported in (2002) 9 NWLR (Pt.771) 1 @ 22-23 where the Court of Appeal (Nigeria) relied on Halsbury’s Law of England (3rd Edition), Vol.15, pages 407 – 408 @) paragraph 729, which is more useful to the appellants’ contention than the respondents’; that the court below was wrong to use Exhibit B in favour of the respondents, especially as the respondents introduced the fresh issue of the lot appellant giving his consent to the use of Exhibit B by the court below without obtaining the leave of the Court to raise the fresh point contrary to the case of Chris v Ononuju (2008) 9 NWLR (Pt.1093) 642 @ 652 – 653, Coupled with the fact that the issue was raised in counsel’s address which does not constitute evidence following the case of Vinz Int’l (Nig.) Ltd. Morohundiya (2009) 11 NWLR (Pt.1153) 562 @ 583.
The reply brief also contended that the court below dwelt largely on Exhibit B in its Judgment wherein it found that 1st appellant presented the cheques against the proposal made in Exhibit B, imputing malice on the part of the 1st appellant in consequence, which cannot be predicated on a document marked “WITHOUT PREJUDICE”, such as Exhibit B, following Halsbury’s Laws of England (supra); that the reliance by the court below on the inadmissible Exhibit B caused substantial error and miscarriage of justice and the court should strike out every imputation of malice on the part of the 1st appellant based on the content of Exhibit B and disregard the cases of Isiaq (supra), Obi (supra) Baba Ahmed (supra) and Onimole (supra) cited by the respondents as irrelevant, as the court below did not evaluate the documentary evidence dispassionately and; that the decision the court below arrived at would not have been the same without Exhibit B vide Ameyo v. Oyewole (2009) 8 NWLR (Pt.1142) 1 at 13.
The issues distilled by the appellants are, in my view, apt and same shall be followed in the determination of the appeal. In the judgment of the court below, it stated in part in page 180 of the record of appeal:
“It is not in dispute that there was a contractual relationship between the 1st respondent and Gold worth Engineering Services Ltd – a company in which 1st and 2nd applicants are Directors. Indeed that company took loans from 1st respondent who is a licensed money lender. Various instruments were issued and executed evidencing these loans.” (my emphasis).
Although the court below did not expressly refer to Exhibits 1 (1) – 1 (11), 2, 3, 4(1) – 4(5), in its judgment, the above quoted findings with emphasis on the underlined portion thereof were in relation to the same Exhibits which were on the loans agreement and the instruments guaranteeing the loans.
The court below was, in my view not called upon by the matter before it to determine the liability or otherwise of the respondents for the loans in question and was not, expected or required to give in depth analysis of Exhibits 1(1)-1(11), 2, and 4(1)-4(5). If it had done so by critically examining the said Exhibits, it would have strayed outside the mandate of the proceedings before it. Suffice it to state that on the surface the approach by the court below accorded with the treatment of Exhibits 1(1)-1(11), 2, and 4(1) – 4(5) for the purpose of the application before it.
Similarly, Exhibits 2, 5, 6 and 7 were given fleeting consideration by the court below in pages 182-186 of the record of appeal. Mr. Gold for the respondents was, accordingly, right in his submission that the court below considered the above stated Exhibits in its judgment. Exhibits 8 and 9, the 1st and 2nd respondents’ additional statements to the 2nd appellant’s agents, respectively, were, however, not considered either directly or by necessary implication by the court below in its judgment in pages 166-189 of the record of appeal. The contention by Messrs Ibiwoye Esq and Oniyide Esq for the appellants that Exhibits 8 and 9 were not considered by the court below is, accordingly, tenable.
The casual consideration of Exhibits 5, 6 and 7 and non-consideration of Exhibits 8 and 9 by the court below in its judgment when it gave due attention to the other documentary evidence made its approach to the case, with deference, lopsided. For whatever was the worth of Exhibits 5, 6, 7, 8 and 9, the court below was bound to consider them one way or the other in its judgment in the interest of balanced justice; an important facet of adjudication process. See Adebayo & Ors. v Shogo (2005) 2 – 3 SCNJ 60 @ 67 thus:
“The beauty, elegance and romance of our adjudicatory system is that the court should hear all sides, carefully compare the weight of the evidence given, make a proper appraisal before determining preponderance after such painstaking considerations of all issues addressed upon it…. …,.”
See also Mafimisebi & Anor v Ehuwa & Ors. (2007) 1 SCNJ 258 – 259 per Musdapher, J.S.C. (Now C.J.N.) thus:
“By his failure to clearly determine the issue in controversy between the parties by not considering all evidence adduced before him, the learned trial Judge had failed in his duty of just fair adjudication….
The learned trial Judge was wrong to have failed to consider the evidential values of the documents ……”See again the other cases cited on the issue (supra) in the appellants’ joint brief of argument.
The failure of the court below to evaluate the said documentary evidence may not necessarily vitiate its judgment. What the court below left undone by its non consideration of the said documentary evidences will saddle the Court with the duty to step into the place of the court below and assume the responsibility of appraising the documentary evidence under section 15 of the Court of Appeal Act, 2005, as amended, which stipulates inter-alia that:
“The court of Appeal…..,.,… generally shalf have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of Appeal as a court of first instance and may rehear the case in whole or in part. …..”
See also U.B.A. PLC. V. BTL Industries Ltd.(2006) 19 NWLR (Pt.1013) 61 at 137 thus:
“There rs nothing on the record to show that these documents on which’ the appellant relied heavily were given the due consideration they deserved, The appellant thus had good cause to complain, The Court of Appeal appears to have also fallen into the same error of not considering the exhibits. This court has a duty to examine these documents and that is what I have done. See Imah v Okogbe (1993) 9 NWLR (Pt.316) 159; Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1.”The contention on issue 1 is sustained in respect of Exhibits 5, 6, 7, 8 and 9 which shall be considered in the due course.
Exhibit B, the respondents’ solicitor’s letter to the 1st appellant dated 22/12/2009, is the keystone of the contentions on issue 2. For better appreciation of the thrust of Exhibit B, I copy it hereunder:
“WITHOUT PREJUDICE”
RE: LOAN FACILITY IN RESPECT OF GOLDSWORTH ENGINEERING SERVICE LIMITED
We act as Solicitors to Goldsworth Engineering Service Limited hereinafter called “Our Client” on whose mandate and instructions we write with the tone of this letter.
Our Client has informed us that he took a loan from you of the sum of N5,000,000.00, N1,000,000.00; N1,000.000,00.and N300,000.00 only respectively at various times between July, 2009 and November , 2009 in the course of a business as a money lender with the purpose of executing its business at Alcatel-Lucent Lagos.
We are further informed that it was your agreement that the said loans shall attract an interest of N1,250,000.00; N300,000.00 and N60,000.00 only per month respectively.
You will recalled that from the of our instructions, the principal indebtedness of Our Client to you is of the sum of N7,300,000.00 (Seven Million, Three Hundred Thousand Naira) only while the total interest remaining unpaid is of the sum of N6,010,000.00 (Six Million and Ten Thousand Naira) only having paid part of the interest.
Our Client has further informed us that when it first took a loan from you, one Gbenga Ogundeji, the account officer of the banker of Our client executed a letter of guarantee in Our client’s favour which loan with the accrued interest has been successfully repaid by Our client to you thereby discharging the said Gbenga Ogundeji of the guarantee.
You will further recall that the subsequent loans under reference ‘taken by Our client was never guaranteed by Gbenga Ogundeji nor by any other person but Our client, in the course of your understanding, merely issued post dated cheques in your favour of the sums of N6,250,000.00; N1,250,000.00; N1,300,000.00 in respect of the aforesaid various loans respectively and other post dated cheques covering monthly interests of these sums with the usual caution that these cheques shall not be presented for payment without the prior consent and authority of Our Client.
To the dismay of Our Client however, you presented these cheques for payment when you are aware upon series of meetings with you that there was no money yet received by Our Client from Alcatel paid into the account consequent upon which you lodged a complaint with the police of the issuance of dud cheque by Our client.
BE THAT AS IT MAY, we have the instructions of Our Client to defray its indebtedness to you on the following term:
1. That your principal sum of N7,300,000.00 only shall be paid to you forthwith.
2. That the monthly interests accruable on this sum be stopped forthwith by you.
3. That outstanding interests of N6,010,000.00 only be paid by Our Client within a period as may be agreed between you and Our Client in the spirit of the business relationship and the confidence you have had of yourselves.
4. That the following documents be released to Our Client forthwith;
i. Guarantee form executed by Mr. Gbenga ogundeji
ii. The following cheques of the sum of;
a. N6,250,000,00 For the loan of N5,000,000.00
b. N1,250,000.00 For the loan of N1,000,000.00
c. N1,3000,000.00 For the loan of N1,000,000,00
5. That new post dated cheques shall be issued to you in respect of the interest when an agreement term is concluded on same.
In the spirit of an amicable resolution of this matter, if the above terms agreeable to you, we have the firm instructions of our Client to release the First Bank cheques Nos. PC 74829713 and PC 74829712 dated 24/12/2009 issued in your favour to you. The photocopy is hereby attached to this letter.
We hereby seek your favourable cooperation in this regard with a view at settling this matter amicably,
Grateful for your understanding
Yours faithfully,
D.R Gold, Esq.”
Exhibit B was marked “WITHOUT PREJUDICE”. A letter or correspondence so marked means
“Without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.”
(Blacks Law Dictionary, seventh Edition page 1596).
Speaking of the significance of the words “WITHOUT PREJUDICE” in a document, the Supreme Court (Nnaemeka- Agu, J.S.C., now of blessed memory) held inter alia in the case of Ashibuogwu v, A-G Bendel State and Another (1988) N.S.C.C. (Pt.1) 439 at 462 that:
“The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “Without prejudice” and are inadmissible against the parties in that suit………………………………. The learned authors of Phipson: On Evidence (11th Edn.) put it thus at P.307 in para . 679.
“Offers of compromise made expressly or impliedly “Without prejudice” cannot be given in evidence against a party as admissions., the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.”
The privilege is, however, that of the parties.”
A decision of the Court (Enugu Judicial Division) also pointedly held (per Fabiyi, J.C.A (now J.S.C.) in the case of Evuleocha v. African Continental Bank PLC at page 684 (supra) cited by the appellants’ learned counsel that:
“The applicant needs to appreciate the purport of a document marked “without prejudice”. Where an offer is made ‘without prejudice’, it is meant as a declaration that no right or privilege of a party concerned are to be considered as thereby waived or lost. Such a document has no place in legal proof is of an assertion. Generally, it inadmissible in evidence and ‘not worthy of consideration even if put in through the back door.
See also the case of Ofulue v. Bossert (2009) UKHL 16 at pages 1, 2, 5, 20, 21, 25, 34 – 36.
The other case of Grayshot Enterprises Ltd. v. Ministry of Agriculture (supra) relied upon by the respondents, in their brief of argument and the appellants in their reply brief decides it that unless the offer made had been accepted resulting in a concluded agreement before a document marked without prejudice would possess evidential value or be admissible evidence upon which the court could act. There was no proof of Exhibit B materialized into a concluded agreement between the 1st appellant and the respondents consequently, the Grayshot Enterprises Ltd. case (supra) does not advance the case of the respondents, rather it aids the appellants’ contention that Exhibit B should not have been used by the court below.
Exhibit B was, indeed, used by the court below in several passages of its judgment to bolster respondents’ side of the dispute as an enforceable document or a document with evidential value. It was not used to test the admissibility of the document, as erroneously submitted by respondents’ learned counsel.
Some of the said passages in the judgment of the court below which attested to the use of Exhibit B stated inter-alia thus:
“Indeed in Applicants’ Exhibit B, written to the 1st Respondent on 22/12/09 and written by applicants’ solicitors, it was clearly stated that the cheques were issued with the usual caution that they shall not be presented for payment without prior consent and authority of the Applicants. Despite this, according to the said letter, 1st Respondent wrote a petition to the police, 1st Respondent then presented the cheques to make them dud even though she knew from meetings with Applicants that there was no money in the account. She then lodged a complaint to the police on the issuance of a dud cheque.
Exhibit B was written after 1st Applicant had been arrested pursuant to a petition by 1st Respondent on issuance of dud cheques. See paragraphs 15 – 20 of the affidavit in support.” (My emphasis).
Then on pages 183, 184, 185 of the record, the judgment continued.
“Furthermore, based on Applicants’ exhibit B, the cheques were not to be presented without the consent and authority of the 1st and 2nd Applicants…………………. I am thus of the view that with the good faith displayed by the 1st and 2nd Applicants vide Exhibit B, it is not probable that they have made payments proposals and paid N7.3 million to the creditor even if the total sum outstanding as per exhibit 5 is N16,260,000 that payment is still evidence of intention to repay the loan. Exhibit B was not denied. 1st Respondents’ exhibit 6 in fact confirmed knowledge of exhibit B. Exhibit 6 also failed to mention the proposals made in Exhibit B and in particular the understandings as to presentation of the cheques. I believe exhibit B is a statement of the truth and that the understanding was that the cheques be not presented without the consent and authority of 1st and 2nd Applicants………….. The foregoing is a summation of the 1st two series of arrests and detention.” (my emphasis).
The “1st two series of arrests and detention” referred to in the passage quoted above were those of
“17th to 20th January, 2010” for the 1st respondent and “19/1/10 to 20/1/10” for the 2nd respondent (see page 188 of the record).
It is indisputable from the excerpts above that the court below relied heavily on Exhibit B to resolve the first series of arrests and detention of the 1st and 2nd respondents (17th – 20th, January 2010, for the 1st respondent; and 19th – 20th January, 2010, for the 2nd respondent), against the appellants. Remove Exhibit B, the judgment of the court below on the first series of arrests and detention referred to above would collapse. In other words, Exhibit B is the rampart or main pillar holding together the basis of the judgment of the court below on the said first series of arrests and detention of the 1st and 2nd respondents attributed to the 1st appellant.
I would agree with the appellants’ learned counsel that Exhibit B formed part of the reasoning of the court below on the premature presentment of one of the post-dated cheques by the 1st appellant to make it dud contrary to the mutual agreement between the respondents and the 1st appellant that the post-dated cheques were to serve as security for the loans, not cashable by the 1st appellant, save with the prior consent and approval of the respondents. Also the accusation of threat to the life of the 1st appellant and the threat to destroy her property by the 1st – 2nd respondents made b the 2nd appellant’s agents by the 1st appellant was disbelieved by the court below based on Exhibit B, which rendered the said report baseless or unfounded and made the arrest and detention arising therefrom wrongful.
The court below was, with deference, in error to have used Exhibit B in its judgment when there was no evidence of the respondents’ waiver of the privilege accorded them by the without prejudice rule applicable to Exhibit B. The decision arrived at by the court below finding the 1st appellant liable for the detention of the respondents, which based its reasoning on Exhibit B cannot stand, in my view.
Exhibit 6 concerned the arrest and detention of the 1st – 2nd respondents. It was a petition written on behalf of the 1st appellant. A dispassionate look at Exhibit 6 dated 04.01.2010 showed it was the engine of the dispute that generated into the alleged arrest and detention of the 1st – 2nd respondents on the first occasion in January, 2010. It is necessary to copy it below:
“The Inspector General of Police
Nigeria Police Force,
Force Headquarters,
Abuja.
Dear Sir,
ALLEGATIONS OF CRIMINAL CHEATING, BREACH OF TRUST, DECEIT, FRAUD, ISSUING OF DUD CHEQUES, HARASSMENT, INTIMIDATION AND THREAT TO THE LIFE AND PROPERTIES OF ALHAJA KUDIRAT IBIYEYE BY MESSRS. ABDULLAHI ADEBAYO GOLD, ADI RAZAQ ABUBAKAR ABDULRASHEED AND OGUNDEJI OLUGBENGA.
We are solicitors to Alhaja Kudirat Ibiyeye, a licensed Moneylender and businesswoman of No. 78, Offa Garage Road, opposite Kwara Express, Ilorin, Kwara State hereinafter referred to as our client and on her instruction we write.
Our client informed us that she granted various Loan facilities in the sum of Twenty Two Million, Nine Hundred and Thirty Thousand Naira (N22,930,000.00k) Only which sum includes its accrued interest to Abdullahi Adebayo Gold, Abubakar AbdulRasheed and Adi Razaq all trading under the name and style of Goldsworth Engineering Services Ltd. and a Hilux Truck fraudulently obtained from her valued at Three Millon Five Hundred Thousand Naira (N3,500,000.00k) only with Five Months interest at the rate of Five Hundred Thousand Naira (N500,000.00k) only per month all totalling Six Million Naira (N6,000,000.00k)only. The head office of the said Company is situate at No.11, Umaru Saro Road, Opposite Queen School, P.O. Box 812, Ilorin, Kwara State. Copies of the various loan agreements are hereto attached for your perusal.
In addition and way of securing these agreements, our client also executed Deeds of Guarantee as well as supplemental agreements with one Ogundeji Olugbenga of Oceanic Bank, Ilorin, Kwara State.
It is our instruction that Messrs Abdullahi Adebayo Gold,Abubakar AbdulRasheed and Adi Razaq issued several post dated cheques to our client with a clear instruction that she could present these cheques at the designated banks at their various due dates. It is also our instruction that in addition to the various post dated cheques referred to above, they also prepared several letters of instruction duly signed by Mr Abdullahi Gold to transfer fund as they fall due for payment to our client’s account Number 0521701700720 at Oceanic Bank Plc from their Corporate account Number 0521101008211 with the Name Goldsworth Engineering Services also at Oceanic Bank Plc. Copies of the various cheques and letters of instruction addressed to the Manager, Oceanic Bank Plc, Murtala Muhammed Way, Ilorin are also attached for your perusal.
All the post dated cheques were presented for payment after their due dates and all of them were eventually dishonoured and returned to our client as dud cheques.
It is our instruction that Mr. Abdullahi Adebayo Gold confirmed our client’s position with respect to his indebtedness to her to the tune of N22,930,000.00k by his fetter to our client dated 10/11/2009.The fetter is attached to this allegation.
As if the above position was not unfortunate enough, informed us our client that every effort made by her to recover her money from Messrs Abdullahi Adebayo Gold, Abubakar AbdulRasheed and Adi Razaq proved abortive. They began to give flimsy excuses for their inability to repay their debt. For issuing dud cheques, they gave no reasons other than to apologize. They subsequently formed the habit of avoiding our client’s phone calls and refused to honour any meeting with her. When they observed that our client was determined to recover her money, they resolved into harassing, intimidating and threatening her life and properties through their phone calls and messages. They have now capitalized on the fact that our client is a female to cheat her.
It is our instruction that our client is no longer safe due to the threats to her life and properties by Mr. Abdulfahi Adebayo Gold, Abubakar AbdulRasheed and Adi Razaq.
Our client informed us that Mr. Ogundeji Olugbenga of Oceanic Bank Plc., Ilorin used his status as the Account officer to deceive our client to grant the various loan facilities to Mr. Abdullahi Adebayo Gold, Abubakar AbdulRasaq and Adi Rasaq. He accomplished them severally to our client’s house to plead for the loan facilities. His role in the transaction largely influenced our client in granting the loan facilities.
He (Ogundeji Olugbenga) guaranteed these facilities and deceived our client into releasing her hard earned money on loan to them. He also influenced the production of the several letters of instruction to transfer fund to our client within Oceanic Bank Plc Ilorin Branch where he works as a means of gratifying himself illegally from our client’s money.
All the efforts of our client to make him redeem the loans he guaranteed have also proved abortive. He has employed all strategies available to him to frustrate our client from collecting her money which strategies extend to harassing, intimidating and threatening the life and properties of our client while capitalizing on the fact that our client is a female.
It is our instruction that prior intimidate to their resolution to harass, and threaten the life and properties of our client, Mr. Abduflahi Adebayo Gold paid the sum of N7,300.000.00k to our client from the outstanding debt now leaving them with an outstanding debit balance of N15,630,000.00k.
Needless to say any further that Mesrs Abdulahi Adebayo Gold, Adi Rasaq, Abubakar AbudulRasheed and Ogundeji Olugbenga, criminal acts to issuing dud cheques, preparing fake and fraudulent letters of instruction to transfer fund into our client’s account at Oceanic Bank Plc, Ilorin branch to deceive our clients into believing that her money was secured thereby cheating our innocent and unsuspecting client, harassing, intimidating and threatening her life and properties are bizarie, illegal, unlawful, unconstitutional and constitutes a gross abuses of our client’s rights to personal liberty and freedom of movement among others as guaranteed under and by virtue of the relevant portions of the Constitution of the Federal Republic of Nigeria , 1999.
Our client’s confidence in them has been completely eroded. They are dishonest and unreliable citizens of the country who will stop at nothing to cover their criminal activities. Our client no longer feels safe as she now hides her whereabouts to protect her life from the constant threat of these individuals.
It is our instruction that the money loaned to Messrs. Abdullahi Adebayo Gold, Abubakar AbdulRasheed and Adi RAzaq forms a substantial part of the money our client secured as Loan from her many creditors which creditors includes individuals, financial organizations and banks. These loans have also fallen due for payment with interest accumulating on daily basis but the actions of the perpetrators of these criminal acts against our client has frustrated her ability to pay her debts to these numerous creditors. Our client’s creditors are now demanding for the payment of their money together with its accumulated interest. They are also threatening to embark on legal action if such payments are not made. One of such letters of demand is the one dated 21/98/2009 from profiles Megakonsult written for and on behalf of Intercontinental Bank Plc. Same is attached for your perusal.
It is against the above unfortunate background that we have our client’s instruction to request your good office to recover the fraudulently obtained Hilux Truck by these individuals valued at Six Million Naira (N6,000,000.00k) only (5 months interest inclusive as agreed by the parties), and bring to book the perpetrators of these criminal acts against our client. We also have a further instruction to appeal to your good office to employ all measures within your disposal to secure the life and properties of our client while we await your prompt response Sir.
Thanks.
Yours faithfully,
PP: BAYO OJO & CO.”
(My emphasis)
Exhibit 6 dated 4/10/2010 had two faces. One carrying criminal allegations and the other civil complaint. Exhibit B came after the arrest of the respondents. It was put together to settle the dispute between the parties in order to secure the release of the 1st – 2nd respondents from police custody True, the 1st respondent made two statements to the police in respect of the dispute. I copy the two statements in Exhibits 7 and 8 below:
“11, Lagos Road,
Ilorin, Kwara State
20th January, 2010
Assistant Commissioner of Police,
IGP Monitoring Unit,
Force Headquarters,
Luise Edet House,
Abuja.
Dear Sir,
ADDITIONAL UNDERTAKING
We the undersigned hereby mar before of this additional undertaking before of unable self and office that we will redeem our indebtedness. to Alhaja Kudirat Ibiyeye as early as possible are before the due date specified in the post-dated cheques on money is available for the payment of our debts.
It is only in the worst case scenario that the due date in the post-dated cheques will be followed.
We appreciate your kind consideration on this issue.
Dated this 20th day of January 2010.
Yours faithfully,
Abdullahi Gold
(Exhibit 7)
In addition to my earlier statement in our second transaction with LARASKUD Nigeria Ltd where we took the sum of N7,300,000.00 as loan and purchase her HILUX VAN for the sum of N3,500,000.00. I had course to disagree with the Managing Director of Larakud Nig. Ltd when she transfer agreement for the car purchase which now shows the transaction as a Loan agreement was forged and other document that are related to the loan agreement. That I am not aware of the letter dated 06/05/2009 written to Manager Oceanic Bank for the transfer of the sum of Three Million Seven hundred Naira only (N3,700,000.00) likewise the letter of 09/10/2009. Also I am not aware of the letter of addressed to manage Oceanic Bank. We had never given our account officer any whatever. (That at a meeting held at the) The total amount Goldsworth is owing Larakud Nigeria Ltd. is N24,730,000 being money divertly borrowed for projects and money guaranteed by us (Exhibit 8).
The 2nd respondent’s statement to the police in connection with the dispute was recorded in Exhibit 9. I copy it below:
“I Adi Rasaq male, having been duly cautioned in English Language that I am not oblige to say anything unless I wish to say so but whatever I may say shall be taken down in writing and may be given in evidence. I voluntarily elect to state as follows. I was born in the year 1968 into the family of Late Alhaji Mohammed Adi Bello and Late Alhaja Alimat Oluwatoyin Adi of 17, Shoto Street, Pakata Area Ilorin, a native of Ilorin, I attended Pakata LGEA Primary School, Ilorin but erdow School leaving Certificate in Bashita. I also attended Abdul Azeez Attah Memorial College, Okere. I attended Kwara State Polytechnic, Ilorin for HND Electrical/Electronics with Telecommunication Engineering. I also attended Federal University of Technologies Minna and Akure for B.Eng. Electrical/ Computer Engineering and Postgraduate Diploma in Electronics with Telecommunication respectively. I served in Nigeria Army Corps of Artiller and Schools (NACAS Hqtrs), Kontagora for a one juar Mandatory Youth Services Schemes in 1996/1997. I worked with University of Ilorin from 1998 to 2004 which I served as Computer Engineer II for the Campus Network Buried under the canopy of Directorate of Computer Services and Information Technology from there I resigned in April, 2004 and float an Engineering Company named Goldsworth Engineering Services Ltd registered on l8th-04-2007, since the inception, we have been working on Fibre projects and tower Erection for Network build for GSM operators. (I know a company called Goldsworth Engineering services Ltd started with 5 but prominently to pay back in a we have two now, Rasaq Adi Abdullahi Gold. The Company has 11 regular staff. (1) Rasaq Adi, (2) Abdullahi Gold, (3) Oyeleke Oyebamji Idowu (4) Yahaya Idowu M.J (5) John Samuel Gwongs (6) Pam Debong (7) Usman Lawal (8) Muyideen Gold, (9) Emmanuel Wada (10) David Habila (11) Hosea Datum.
The company has 1 million shares; the sharing formula is awaiting perfection from the company Legal
Adviser/Secretary. The sisters company of Goldworth Engineering Services Ltd are Agolfa Nig Ltd and phalant Nig Ltd all of the same address and the same Directors. Yes I know company called Larakud, they are into various business including project financing and money lending. We took the sum of three million naira as a project loan of 22nd March, 2009 with a promise pay back in a month interval with interest which we did. We also borrowed some money for other projects in which sum have been paid while total of N24,730,000= is the agreed interest allowed to be paid for Goldsworth Engineering Services Ltd and other Companies that we serve as a guarantor i.e the total money borrowed from Larakud by Mubaraq and Abdulrasheed and the income allowed on it.”
Exhibit 5, dated 10/11/2009, was on respondents’ harmonization of their total indebtedness to the 1st appellant. It was not considered aright, in my view, by the court below as it did not pertain to the issue of the alleged criminal complaints that brought about the proceedings in the court below. Its non-consideration by the court below did not, therefore, occasion miscarriage of justice to the 1st appellant who did not sue for the recovery of the harmonized debts in the court below, but was a co-respondent in that court in the application for the enforcement of the fundamental right of personal liberty of the present respondents.
Exhibits 7, 8 and 9 (supra) were in connection with the first set of arrest and detention of the 1st – 2nd respondents triggered by Exhibit 6. Exhibits 7, 8, and 9 did not address the criminal allegations. What Exhibits 7, 8 and 9 contain in compressed form was the acknowledgement of the indebtedness and the plea of the 1st-2nd respondents for more time to liquidate their indebtedness to the 1st appellant. Had Exhibits 7, 8, and 9 been adequately considered by the court below against the backbone of Exhibit 6, it would have found that the criminal allegations in Exhibit 6 were not seriously met by the 1st- 2nd respondents. And the court below would not have pre- occupied itself with Exhibit B to draw far reaching conclusions therefrom that the 1st appellant was primarily detention liable for the of the 1st- 2nd respondents in the circumstance.
The 2nd Appellant did not file counter-affidavit in the court below. By law, the 2nd appellant may derive benefit from the 1st appellant’s counter-affidavit filed in the court below if it was also deposed to on his behalf’ See Akinkugbe & Ors vs Bucknor (2004) 11 NWLR (Pt.885) 652 @ 672. A glance at pages 54-62 of the record revealed that the 1st appellant deposed to the said counter-affidavit for herself only. In that case, the 2nd appellant cannot rely on the said counter affidavit.
The 1st appellant deposed in paragraphs 33-35 of the counter- affidavit in respect of the first set of arrest and detention that:
“33. That I know as a fact that the applications were never investigated or invited for interrogation and questioning by the 2nd respondent on the allegation of their indebtedness to the 1st Respondent. On the contrary, they were investigated on the criminal allegations of cheating, breach of trust, deceit, fraud, issuing of dud cheques, harassment, intimidation and threat to the life and properties of the 1st Respondent.
34. That the 1st Respondent did not know the 2nd Respondent or any of his officers investigating her petition against the Applicant until the filing of her said petition reflected herein as exhibit 6. Her petition was written in exercise of her right as a law abiding citizen of Nigeria.
35. The 1st Respondent is not in any position to utilize the apparatus of the 2nd Respondent to oppress and trample on the Applicants’ constitutional rights. The 1st Respondent never violated, oppressed and trampled on their rights.”
There was no further affidavit from the appellants refuting the depositions reproduced above. It is trite that unrefuted depositions in a counter-affidavit are taken as admitted by the adverse party. See Anah vs Anah (2008) 9 NWLR (Pt 1091) 75 @ 83 thus:
From the uncontroverted counter-affidavit evidence of the respondent, I have no other option other than to accept same as truth.,’
See also Asol Nigeria Limited vs Access Bank (Nig) Plc (2009) 10 NWLR (Pt.1149) 289 @ 307, where it was held (Per Rhodes-Vivour, J.C.A., now J.S.C.) inter-alia that:
Where no reply affidavit is filed the facts in the counter- affidavit are deemed admitted and established to the satisfaction of the court. See Egbuna vs Egbuna (1989) 2 NWLR (Pt.106) p.773; Soy Agencies vs Metalum Ltd (1991) 2 NWLR (Pt. 177 p. 35; Jumbo Nwanganga vs M.G. Imo State (1982) 3 NWLR (Pt.59) p. 185.
See again, First Bank of Nigeria Plc & Anor vs Ndarake and Sons (Nig) Ltd & Anor (2009) 15 NWLR (Pt. 1144) 406 @ 414 – 414.The net result is that by the respondents not deposing to a further affidavit controverting paragraphs 33-35 of the 1st appellant’s counter-affidavit in the court below, they admitted that the 1st appellant reported a criminal case against them to the 2nd appellant in a petition (Exhibit 6) without more and/or without instigating or directing the 2nd appellant or his agents to detain the respondents for the number of days complained of (supra). The decision taken by the 2nd appellant’s agents to detain the respondents, which the 2nd appellant did not deny having not filed counter-affidavit in the court below, was outside the control of the 1st appellant and; the court below wrongly, in my view, held the 1st appellant, instead of the 2nd appellant, liable or responsible for the said detention of the 1st respondent on 17th – 20th January, 2010, and the 2nd respondent on 19th – 20th January, 2010. See Fajeromirokun vs C.B (C.L) Nig Ltd. (2002) 10 NWLR (Pt 774) 75, a decision of this Court cited by the appellants’ learned counsel which was affirmed by the Supreme Court in Fajemirokun vs Commercial Bank (Credit Lyonnais) Nigeria Limited & Anor (2009) 5 NWLR (Pt. 1135) 588 @ 600 (Per Ogebe, J.S.C., as he was) thus:
Generally, it is the duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police…”
Also, in Duru & Anor vs Nwangwu & Anor (2006) 5 SCNJ 394 @ 401 – 402 the Supreme Court (Per Katsina-Alu, J.S.C. later C.J.N.) held inter-alia thus:
“I now come to issue No.2. In the course of its judgment the Court of Appeal held that:
“…I am prepared to agree with the appellants that the respondents cannot seek to enforce their fundamental rights against them. That is so on the further ground that the respondents’ arrests and detention have been the work of the police officers and prison officers having nothing to do with the appellants. AII that the 2″0 appellant had done was to petition the police who in their judgment have carried out the arrests and detention of the respondents. It is settled an individual that where has lodge the facts of his complain to the police as in this case-by way of petition, and the police have thereupon on their own proceeded to carry out arrests and detention, then the fact of imprisonment is that of the police. …..”
In plain language it was their case that they did not arrest and detain the appellants and they cannot therefore be held responsible for the actions of the police.
First, the Court of Appeal, by its decision complained about was only trying to resolve and indeed rightly-resolved the issue placed before it.”
See further Adefumilayo vs Oduntan (1959) WNLR 31; Gbajor vs Ogunburegui (1961) 1 All NLR 853, and S.P.D.C. (Nig) Ltd vs Olanrewaju (2003) FWLR (Pt.140) 1640.
The second alleged detention was deposed to in paragraphs 27- 32, 41 and 44 of the respondents’ joint affidavit follows:
27. That premised on the above meeting, a Memorandum of Understanding between the parties was drawn, wherein the remaining debts including, the interest on the principal loan, the sum for the Hilux Van and the loans of 3rd Applicant and of the said Rasheed Abubakar was to paid by the 2nd Applicant and myself.
28. That it was further agreed at the meeting and expressed in the said Memorandum of Understanding that the remaining sum will be spread and paid from February, 2010 to June 2010 on or before the last day of each month.
29. That the said Memorandum of understanding duly executed by me, 2nd Applicant and the 1st Respondent is hereby attached as Exhibit C.
30. That on 17-02-2010 not withstanding Exhibit C, the 1 and the 2nd Applicant was (sic) arrested again by another team of servants of the 2nd. Respondent on another petition from the 1st Respondent dated 4/02/2010 also on allegation of criminal breach of trust and issuance of dud cheque.
31. That 1 and 2nd Applicant were detained by the servants of 2nd Respondent from 17-02-2010 to 19-02-2010 before we are (sic) released.
32. That on 19-02-2010 the 3rd Applicant was also arrested and detained till 22-02-2010 by the officers of the 2nd Respondent not withstanding the understanding in Exhibit C that his debt will be defrayed bv the 1st and 2nd Applicants.
44. That the 2nd Respondent have nothing against the Applicants but are acting on the directive of the 1st Respondent to incessantly arrest and detained me and the 2nd and 3rd Applicants in order to recover the debt of the 1st Respondent from me and the 2nd and 3rd Applicants.”
Paragraphs 24 – 31, 33 – 35, 40, 41, 46, 48 and 55 of the 1st appellant’s counter-affidavit deposed:
“24. That the 2nd Respondent did not present himself or any of his agents/officers to either the Applicants or the 1st Respondent as a debt collector. The 2nd Respondent did not act as a debt collector in the discharge of his lawfully duties in the course of his investigation.
25. That the Applicants by themselves introduced criminal elements into their transaction with the 1st Respondent by issuing post dated cheques eventually dishonoured and returned to the 1st Respondent as dud cheques.
26. That the Applicant admitted issuing post dated cheques to the 1st Respondent in many of their correspondence to the Respondents. Few of such to the correspondence includes the 1st and 2nd Applicants’ written additional undertaking to the 2nd Respondent dated 20th January, 2010. A copy of the additional undertaking is attached and marked as Exhbit 7.
27. That the Applicants never instructed the 1st Respondent not to present the various post dated dishonoured cheques at the designated banks at their due dates.
28. That the Applicants habitually deceived the 1st Respondent to believe that they will redeem their indebtedness to her. All these they (Applicants) failed to do. Exhibit 7 is instructive to this effect.
29. That the Applicants further introduced criminal elements into their transaction with the 1st Respondent when they resolved by their actions and omissions to act to cheat, deceive, defraud, harass intimidate and threaten her life and properties.
30. That it was these criminal elements introduced by the Applicants that became a matter of concern and interests needing urgent attention and investigation by the 2nd Respondent.
31. That the 2nd Respondent kindly considered the response/defence of the Applicants to the 1st Respondents petition before it throughout the course of their investigation. This much was concede to by the 1st and 2nd Applicant in their additional undertaking to the 2nd Respondent already attached as exhibit 7. By exhibit 7, the 1st and 2nd Respondents by themselves appreciated the 2nd Respondent’s kind consideration to the issues involved in the petition of the 1st Respondent against them.
33. That I know as a fact that the Applicants were never investigated or invited for interrogation and questioning by the 2nd Respondent on the allegation of their indebtedness to the 1st Respondent. On the contrary, they were investigated on the criminal allegations of cheating, breach of trust, deceit, fraud, issuing of dud cheques harassment, intimidation and threat to the life and properties of the 1st Respondent.
34. That the 1st Respondent did not know the 2nd Respondent or any of his officer’s investigation her petition against the Applicant until the filing of her said petition reflected herein as exhibit 6. Her petition was written in exercise of her right as a law abiding citizen of Nigeria.
35. That the 1st Respondent is not in any position to utilize the apparatus of the 2nd Respondent to oppress and trample on the Applicants’ constitutional rights. The 1st Respondent never violated, oppressed and trample on their rights.
40. That there was never an agreement between the Applicants and 1st Respondent that the post dated cheques issued to the 1st Respondent were to merely serve as securities for the loans granted.
41. That there was also no such agreement between the Applicant and the 2nd Respondent that the post dated cheques were only to be presented to the designated banks on the consent, authority and instruction of the 1st and 2nd Applicants after they had been issued to the 1st Respondent. Exhibit 2 and 7 are particularly instructive on this issue,
46. That the 1st Respondent did not present the Applicants’ post dated cheques as a ploy to harass them. They were presented with the singular motive of recovering her earned investments and hard money.
48. That the 2nd Respondent that Respondent confirmed the petition of the 1st the Applicants issued dud cheques to her. They also confirmed the allegations of criminal cheating;breach of trust, deceit, fraud, harassment, intimidation and threat to the life and properties of the 1st Respondent.
55. That the allegation of unlawful detention by the Applicants is total falsehood. They are ploys to appeal sentiments and distract the Respondents’ attention from the petition of the 1st Respondent against them. ”
Exhibit C referred to in the respondents’ affidavit stated:
“LETTER OF ACKNOWLEDGEMENT AND UNDERTAKING TO ALHAJA KUDIRAT IBIYEYE
We the undersigned hereby humbly acknowledge our indebtedness to you Alhaja Kudirat Ibiyeye to the tune of Twenty-four Million, Seven Hundred and Thirty Thousand Naira N24,730,000.00 which debt includes the liability of Mubarak Adi and Abdulrasheed Abubakar and equally arose as a result of various Loan Agreements, Supplemental Agreement and Deed of Guarantee we entered with you at various time in the year 2009.
Based on the above acknowledgement we hereby voluntarily undertake as follows:
(1) That with effect from February, 2010 to June 2010 and particularly on or before the last day of each of the months, we shall be paying a minimum of Four Million, Nine Hundred and Forty-Six Thousand Naira (N4,946,000.00) to you Alhaja Kudirat Ibiyeye.
(2) That we shall not fail to fulfil this witling undertaking.
(3) That we hereby present Five (5) postdated cheques each of which is in the sum of N4,946,000.00 for the months of February to June 2010 which you are at liberty to present in bank at their various due dates.
We appreciate you for your indulgence with respect to our indebtedness to you.
Dated this 19th day of January, 2010.
SIGNED SIGNED
MR RAZAQ ADI ABDULLAHI ADEBAYO GOLD
SIGNED
ALHAJA KUDIRAT IBIYEYE
Exhibit C (1st appellant’s Exhibit the 2) was not seriously challenged by 1st appellant: she did not dispute signing it with the 1rr respondents on 1st – 2nd respondents on 19/01/2010, at the time of the first arrest and detention of the 1st – 2nd respondents. Exhibit 7 referred to in paragraphs 26 and 41 of the counter-affidavit (supra) was copied earlier in the discourse. It is dated 20/01/2010. It was, presumably, an additional undertaking to the one in Exhibit C
Both the 1st appellant and the 1st – 2nd respondents mutually agreed in Exhibit C that the post-dated cheques were to be presented on the last day of the months of February, 2010, to June, 2010 in tandem with the months stated thereon and in their serial dates starting with the post-dated cheque for the months of February and henceforward in that order to the last post dated cehque to be cashed or presented in the last month of June, 2010. Exhibit E re-echoed the memorandum of understanding in Exhibit C in these words:
“We wish to place on record that, inspite of the understanding made between Mr. Razaq Adi and Abdullahi Gold, Directors respectively to offset the indebtedness of Goldsworth Engineering and that of Mubarak Adi and Abdulrasheed Abubakar, made on 19th January, 2010, which undertaking was to take effect from February, 2010, and to end in June, 2010, you went ahead to petition the office of the Inspector-General of Police on allegations which we are of the view that you are abreast that, it does not respect the truth of the undertaking signed by our client with your client which undertaking was prepared by you.”
In my considered vi9w, paragraph 24 – 35, 40 – 41, 46, 48 and 55 of the counter-affidavit would yield to the overriding mutual written agreement reached by the 1st appellant and the respondents in Exhibit C, (the 1st appellant’s Exhibit 2), estopping the 1st appellant from taking a contrary position as she endeavoured to do in the relevant paragraphs of her counter-affidavit (supra).
The 1st appellant did not wait for the first post-dated cheque for the month for February, 2010, to mature before she presented the postdated cheques contrary to express mutual agreement in Exhibit C, (1st appellant’s Exhibit 2) .. (supra). The post-dated cheques were, accordingly, dishonoured by the Bank, as tire respondents’ account was then in debit. Armed with the dishonoured cheques, the 1st appellant reported the 1st – 2nd respondents to the 2nd appellant’s agents on 17/02/2010, for criminal breach of trust and for issuing dud cheques to her. The agents of the 2nd appellant acted on the report leading to the arrest and detention of the 1st – 2nd respondents on 17/02/2010 to 19/02/2010 for the 1st respondent and 17/02/2010 to 22/02/2010 for the 2nd respondent.
The court below found aright, in my opinion, that the second detention of the 1st – 2nd respondents at the instance of the 1st appellant was baseless and in bad faith. It is rewarding to quote the portion of the judgment of the court below in that regard thus:
“Curiously the cheque dated 31/5/10 was presented and returned dishonored. Likewise those dated 30/4/10, 31/5/10 and 28/2/10. It is therefore clear that the 1st Respondent herself made those cheques dud by her deliberate conduct, even some of them were not due for payment as at 9/3/10 when this action was filed or 16/3/10 when 2nd respondent was served. The cheques were however presented after applicants had by exhibit E advised the 1st respondent not to present the cheques as applicants for reasons stated in exhibit E will not be able to meet their obligations and there was no money in the account to service the cheques.
The insistence by 1st Respondent in presenting those cheques in spite of exhibit E lends further credence to the Applicants’ assertion that the cheques alleged to be dud were actually made so by the 1st Respondent who in spite of the understanding of the parties as to presentation of the cheques still went ahead to present same.”
I cannot agree more with the holding quoted above. I endorse it having been supported by the weight of evidence before the court below.
By acting in bad faith or mala-fide in lodging the second report to the 2nd appellant’s agents, the detention of the 1st – 2nd respondents that arose therefrom made the 1st appellant, not the 2nd appellant, responsible for the said detention of the 1st – 2nd respondents by agents of the 2nd appellant acting on the misleading and false report made to them by the 1st appellant that 1st – 2nd respondents had committed the offences of criminal breach of trust and had issued dud cheques to her. In my view, the dishonestly of purpose of the 1st appellant as distinct from her quest to secure criminal justice by the said report justified the court below to find her liable for the second detention of the 1st – 2nd respondents. See Fajemirokun (supra) @ Page 600 thus;
“The citizens cannot be held capable for doing their civic duties unless it is shown that it was done mala fide.” (my emphasis).
It appears certain from the record that the second detention of the 1st – 2nd respondents was for the ulterior motive of the 1st appellants to use the short-cut machinery of the 2nd appellant to recover the debts from the respondents due to her impatience to keep to the deadline of the post-dated cheques mutually agreed to by them in Exhibit C (the 1st appellant’s Exhibit 2) reinforced by Exhibit E which made her to disguise the second report in criminal allegations on account of which the 1st – 2nd respondents lost their personal liberty for the days stated earlier in the discourse.
In the classic case of Ken Mclaren & Ors vs James Lloyed Jennings (2003) 3 NWLR (Pt. 808) 471 @ 484 this Court (Coram: Salami, Mahmud Mohammed, and Dalhatu Adamu, J.J.C.A) held inter alia on the propriety of the police to recover debts or enforce contracts thus:
“I have scrutinized the provisions of the section and am unable to see a provision providing for or empowering police to enforce contract or collect common debts. The appellants and the policemen they pressed into duty were not in Kano to prevent or detect a crime nor was the respondent an offender. It is equally not the case of the appellant that there was a breakdown of law and order, the preservation of which took them to Kano. The court has also not been told of the laws or regulations the group went to enforce in Kano. In short, the appellants and the policemen they took to Kano were there to collect debt which is not one of the several duties assigned to the Police under the provisions of the Police Act to which the court was directed and the court has not been able to find another provision of the Act empowering or constituting the Nigeria Police Force to one of a debt or rent collector, It follows that the policemen who accompanied the appellants to Kano and assisted them in the arrest of the respondent were on the frolics of their own. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the appellants a shield.’
The second detention of the 1st – 2nd respondents was accordingly the handiwork of the 1st appellant and, the court below was on firm ground in finding the 1st appellant liable for the said second detention of the 1st – 2nd respondents. I have no cause to disturb the said finding. I hereby affirm it.
The 1st appellant deposed in paragraph 54 of her counter-affidavit that:
“54. That the Honda the Accord Car and Hilux Van detained by 2nd Respondent have not been released to anyone because investigation is still ongoing in the case.”
The respondents did not challenge the deposition above by way of filing a reply or further affidavit. Accordingly, the respondents admitted the facts stated therein that the 2nd appellant kept the two motor-vehicles for ongoing police investigation. See the earlier cases cited on the issue of unchallenged counter-affidavit.
By the proviso to section 44(2)(k) of the constitution of the Federal Republic of Nigeria,. 1999; as amended, (1999 Constitution) referred to by the appellants in the brief of argument, the right of action in respect of the two motor-vehicles had not accrued at the time the respondents filed the action in the court below. For case of reference, the proviso states that section 44(2) of the 1999 Constitution on the compulsory acquisition of moveable property would not apply-
“K. relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry” (my emphasis).
The court below was, therefore, wrong to hold the 1st appellant liable for the infraction of section 44(1) of the 1999 Constitution. See Ikem vs. Nwogwugwu (supra) @ pp. 149 – 150.
Besides, it may be said in passing that the temporary seizure of the two motor-vehicles by the 2nd appellant’s agents acting on the report of the 1st appellant could not have constituted the infringement of the respondents’ fundamental right under section 44(1) of the 1999 Constitution. For in the case of Abdulhamid vs. Akar & Anor. (2006) 5 SCNJ 43 @ 60, it was held inter alia that:
“the dispute between the appellant and the 1st respondent arose over the money which the appellant owed the 1st respondent. It was the steps the 1st respondent took at recovering the money owed by the appellant that the appellant did not like. The man did not deny owning the 1st respondent.
The appellant’s claim relating to seizure of his vehicles is therefore one of detinue and not per se or ipso facto that of infringement of fundamental rights. It was therefore improper for the appellant to treat the matter as one amounting to that of infringement of his fundamental right and which thereby qualified him to commence the action under the Fundamental Rights (Enforcement Procedure) Rules.” (my emphasis).
In conclusion, the appeal has merit only in respect of the judgment on the first limb of the arrest and detention of the 1st and 2nd respondents on 17th – 20th January, 2010 and 19th – 20th January, 2010, respectively, and, in respect of the leg of the judgment awarding N150,000.00 on each of paragraph 2(f) and (g) of eth reliefs on the seizure of the two motor-vehicles of the respondents, both of which I hereby set aside together with the damages awarded thereon.
There is, however, no merit in the appeal on the second leg of the infringement of the 1st – 2nd respondents’ fundamental right to personal liberty on 17/02/2010 to 19/02/2010 for the 1st respondent and on 17/02/2010 to 22/02/2010 for the 2nd respondent. I dismiss the appeal in respect of the said second detention of the 1st – 2nd respondents.
It may be recollected from the record that the court below awarded 200,000.00 damages to the 1st – 2nd respondents for eth breach of their fundamental right to personal liberty for the first and second sets of detention. An order for public apology in two National Newspapers was made alongside the award of damages. The judgment in respect of the first set of detention has been set aside in the discourse.
Paragraph 2(e) of the reliefs sought in the application in the court below had lumped together the claim for damages for unlawful and unconstitutional detention of the respondents in these words:-
“2(e) N2,000,000.00 damages each against the respondents jointly and severally for the unlawful and unconstitutional arrest and detention of the Application: Abdullahi Gold, Rasaq Adi and Mubarak Adi respectively and a public apology in the regard.”
Ideally the claimants should have set out the relief for damages separately for each of the claimants and for each of the alleged incident or wrongful or unconstitutional detention in the application. The old case of Amachree & Ors. vs. Newington 20 N.L.R. 13 @ 15 (Per Ademola, J) affirmed in (1954) 14 W.A.C.A. 642 held in respect of the point as follows:-
“I am of the view that the amount claimed in respect of each alleged detention must be stated on the writ.”
Be that as it may, the issue was not argued in the appeal and will be allowed to lie where it has fallen. The N200,000.00 damages were awarded for the first and second sets of detention en-bloc. Some surgical exercise needs to be done. With the striking down of the first set of detention in the course of discourse, it is rational, in my view, that N100,000.00 out of the N200,000.00 damages goes with it leaving N100,000.00 damages for the second detention that survive the appeal.
Applying section 15 of the Court of Appeal Act, 2005, as amended, the N200,000.00 damages for unconstitutional detention of each of the 1st – 2nd respondents are hereby halved to N100,000.00 for each of the 1st -.2nd respondents, which shall be the award apiece for each of the 1st – 2nd respondents against the 1o appellant representing their wrongful detention from 17/2/2010 to 19/2/2010 for the 1st respondent and 17/2/2010 to 22/2/2010 for the 2nd respondent under paragraph 2 (e) of the reliefs sought in the application in the court below (supra). The order for public apology given by the court below under same paragraph 2(e) of the reliefs sought (supra) is hereby affirmed. Parties to bear their costs as the appeal was allowed only in part.
TIJJANI ABDULLAHI (PJ), JCA: I have had the advantage of reading in draft the lead judgment of my learned brother, Ikyegh, JCA just delivered. His lordship has painstakingly treated all the live issues that call for determination in this appeal. I entirely agree with his reasoning and conclusions which led to his allowing the appeal in part. I adopt them as mine and I have nothing more useful to add to this all encompassing judgment.
I would also allow the appeal in part in the terms set out in the lead judgment and abide by the order as to costs contained therein.
ITA G. MBABA, JCA: I had the privilege of seeing and reading the draft of the Judgment, just delivered by my learned brother Joseph Shagbaor Ikyegh JCA, which is very detailed and in-depth on the issues distilled and argued. I agree with his reasoning’s and conclusions.
I have to add that the resort to the Police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the Court. The Police have also been condemned and rebuked several times’ for abandoning its primary duties of crime detection’ prevention and control to dabbling in enforcement of settlement of debts and contracts between quarrelling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression. Unfortunately, despite all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the Police remains at the root of many fundamental rights breaches in our Courts.
The 1st Appellant’s Petition of 4/1/2010 (Exhibit 6) to the Police’ which was the core of the disputes that resulted in this case’ had ended with the following prayer:
“… It is our instruction that the money loaned to Messrs Abdullahi Adebayo Gold, Abubakar AbdulRasheed and Adi Razaq forms a substantial part of the money of our client secured as loan from her many creditors…These loans have also fallen due for payment with interest accumulating on daily basis, but the actions of the perpetrators of these criminal acts against our client has (sic) frustrated her ability to pay her debts to these numerous creditors…. It is against the above unfortunate background that we have our clients instruction to request your good office to recover the fraudulently obtained Hilux Truck… valued at Six Million Naira… We also have a further instruction to appeal to your good office to employ all measures within your disposal to secure the life and properties of our client…”
The lengthy letter was, obviously, one that reported a falling apart of a once chubby business partners, and the subject matter was recovery of the outstanding debt to a money lender, whose rate of interest- N1,250,000.00 on N5,000,000.00, and N300,000.00 on N1,000,000.00 per month, should have been of interest to the police, as it may not be protected, anywhere, in the laws!
It is usually in the nature of offended creditors to feign criminal wrong doings against their debtors, in order to attract the sympathy and/or co-operation of the Police to arrest and detain their victims so as to negotiate the settlement of the debt. That appeared to be the case in this Appeal. This practice must be condemned, as the police’s power of arrest does not extend to enforcement of private contracts – Yusuf Umar vs. Anwalu Abdulsalam & Ors (2001) 1 CHR 413; Martins Ors vs. Nwachukwu & Ors (2009 -10) CHR 82 at 99.
Of course, by the case of Ejefor vs. Okeke (2000) 7 NWLR (Pt.665) 363, held 4:
“Where there is an evidence of arrest and detention which were done or instigated by the respondent in an action for enforcement of fundamental rights application, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was lawful.”
For this and other reasons, more elaborately contained in the lead judgment, I too dismiss the appeal (except the part upheld in the lead judgment), and abide by the consequential orders therein.
Appearances
Mr. Sheni Ibiwoye,
Mr. Taiye Oniyide,
Bayo Ojo & Co.For Appellant
AND
Mr. B.R. GoldFor Respondent
