ANOWU v. ULU & ANOR (2020)

ANOWU v. ULU & ANOR

(2020)LCN/14624(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/AS/210M/2009

RATIO

PLEADINGS DAMAGES –COMPENSATORY AND EXEMPLARY DAMAGES

In EZEAGU & ORS v NWONU (2016) LPELR – 40164(CA), on the nature of exemplary damages this Court stated the nature of compensatory and exemplary damages thus;
“Now what is the essence of exemplary damages. The Supreme Court in Chief F. R. A. Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (pt. 124) 1; (1990) 1 S.C. 23; (1990) LPELR – 3487 (SC) at pages 45 – 47 per his Lordship Eso, JSC, succinctly stated that: “Exemplary damages are usually awarded where statutes prescribe them and apart from this, they are only awarded for two categories to wit (1) Oppressive, arbitrary or unconstitutional action by servants of the government. See Lord Devlin in Rookes v. Bernard (1964) A. C. 1230 matters for compensation are different from matters for punishment. In MC Caney v. Associated Newspapers (1965) 2 Q. B. 104, Pearson, L. J. Held “Compensatory damages… may include not only actual pecuniary loss and anticipated loss or any social disadvantages which result or may be thought likely to result from the wrong which has been done.” This is not punishment. Punishment is best illustrated in the dictum of Lord Hailsham in Broome v. Cassel (1972) A. C. 1070, where Lord Hailsham regarded the principle of exemplary damages as teaching the defendant that tort does not pay. Lord Devlin has formulated in Rookes v. Bernard that exemplary damages includes cases where the defendant with a cynical disregard for plaintiff’s rights has calculated that the money to be made out of his wrong will probably exceed the damages at risk. All these, that is in regard to exemplary damages include some deliberations that warrant punishment. (2) Where the defendant’s act which has been held to be tortuous was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty. (Another act of deliberateness).” Further see Anthony Odiba v. Tule Azege (1998) 7 S.C. (pt. 1) 79; (1998) 2215 (SC); (1998) 9 NWLR (pt. 566) 370; G. K. F. Investment Nig Ltd v. NITEL Plc (2009) LPELR – 1294 (S.C); (2009) 15 NWLR (pt. 1164) 344. Thus, simply put, theard awof exemplary damages is primarily punitive particularly where the conduct of the defendant has been shown or demonstrated to be tainted or coloured with malice, fraud, insolence, flagrant, disregard for the plaintiff’s human rights and dignity or disregarding every right principle which distinguishes the action of civilized men from the primordial instincts of retaliation for a perceived wrong done by the plaintiff against the defendant. Hence, exemplary damages are meant to punish the defendant for breaching the legal right of the plaintiff. Therefore, it is more than compensating the person whose rights have been adjudged as having been breached. It can be called an extra compensation, but certainly not double compensation as submitted by the learned Attorney General for the Cross – Respondents.”
Per YAKUBU, J.C.A (Pp. 38-41, PARAS. D)
Furthermore, in the case of IGWE v AMATU & ANOR (2013) LPELR- 24204 (CA), this Court held thus on the issue;
“Before concluding on this issue, I am constrained to comment on the issue of exemplary damages raised by the Appellant for the first time in his Brief of argument before this Court. I agree with learned Counsel for the 2nd Respondents that there was no claim for exemplary damages before the trial Court, neither was it made an issue before the Lower Court. What the Lower Court awarded the Applicant was in the nature of compensation as provided for in Section 35 (6) of the 1999 Constitution. It was not an award of exemplary damages. There is a gulf of difference between the two. Yet, it would appear that the Appellant is using the two words interchangeably. In Joseph Odogu V Attorney-General of the Federation (1996) 7 SCNJ 132 @ 140, the Supreme Court, per Ogundare, JSC, held thus: “Having regard to the circumstances of this case, I have no doubt in my mind that a case for the award of exemplary damages, if claimed, was made out. There was, however no specific claim for exemplary damages. The Appellant came to Court by way of an application for the enforcement of his fundamental right. This application was supported by a 36-paragraphs affidavit sworn to by one Clement Nwankwo, Legal practitioner. Nowhere in the application itself nor in the affidavit in support was any claim made for exemplary damages”. The learned Jurist continued thus on the same page of the Report: “Our attention was drawn at the oral hearing to the case of Shugaba Abdulrahman Darman V Minister for Internal Affairs (1981) 2 NCLR 459 where the Court awarded exemplary damages. The distinction lies in the fact that in that case aggravated and exemplary damages were specifically claimed and pleaded. In the matter before us, there was no such claim made for exemplary damages. I think it will be wrong to award it even though on the facts the case was made out for its award, had it been claimed. Exemplary damages must be claimed and proved before they can be awarded – See Eliochin (Nig.) Ltd V Mbadiwe (supra). Damages in law are of different categories: general, special and exemplary. General damages are such as the law will presume to be the direct or probable consequence of the act complained of, while special damages are such as the law will not infer from the nature of the act, and do not follow in the ordinary course of events but are exceptional in character. See Akinfosile V Mobil (1960) NCLR 253. Exemplary damages, on the other hand, are usually awarded whenever the Defendant’s conduct is sufficiently outrageous to merit punishment, as in cases where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Exemplary damages must be claimed and proved before they can be awarded. Where pleaded and proved, exemplary damages are recoverable if the plaintiff is the victim of the punishable behaviour of the defendant. However, the award of such nature of damages should be moderate; the means of the parties must be considered and it being true that, while a small exemplary award would go unnoticed by a rich defendant, it is equally true that even a moderate award might cripple a poor defendant. See again Odogu V A-G Federation.” (Underlining mine)
Per SANKEY, J.C.A (PP. 41-44, PARAS. B-A)
By virtue of Section 46(1) of the Constitution, Order 1 Rule 2 (1), (2) & (3) of Fundamental Rights Enforcement Rules, 1979, a redress follows breach which includes an entitlement to be compensated.
This is the principle of awarding plenary damages but unlike the ordinary general damages which follows a breach of a constitutional right the condition precedent is that, an Applicant must plead and prove exemplary damages before it is awarded; it is not awarded as a matter of cause. See; ODOGU v A-G FEDERATION (1996) 7SCNJ 132 @140.

The Appellant had asked in relief D for; “N10m being damages for the aforesaid illegal and unconstitutional violation/infringement of the Applicants right.’’ In the supporting affidavit of 17 paragraphs, the Applicant in paragraph 15 thereof deposed;
“That the Applicants is entitled to compensation for injury and damages caused by 1st and 2nd Respondents infringement of his fundamental rights as deterrent against such arrogant and arbitrary acts.”

In Reply to further counter affidavit at pages 60-61, paragraph 13 the Appellant deposed;
“That the Respondents outrageous acts is injurious to the Applicant–victim of the punishable act of Respondents e.g loss of business, indignity, disregard of law or Constitution, stress, humiliation, cruelty, malice etc and attracts aggravated and exemplary damages in addition to general damages to serve as deterrent moreover as they still continue to date despite the exparte order against them in the interim.”
The learned judge held that;
“I am not satisfied with the proof by the Applicant of how that announcement affected him, his person, business and social life in EMU UNOR and environs. But my findings will therefore affect the award of damages to the Applicant.” No award was made in respect of relief D which is the claim for compensatory damages, this is the major complaint of the Appellant, the lower Court had made clear findings that the town crier announcement was made, failed to take judicial notice of the profession of the Appellant and the consequential effect thereof. In JIDE ARULOGUN v COMM. POLICE LAGOS STATE &ORS (2016) LPELR- 40190 (CA), this Court held that where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach.
For the avoidance of doubt, common law principles on award of damages do not apply to matters brought under fundamental rights, when a breach is proved the victim is entitled to compensation even if no specific amount is claimed.
The damages automatically accrue. See; OZIDE & ORS v EWUZIE &ORS (2015) LPELR – 24482 (CA); IGWEOKOLO v AKPOYIBO & ORS (2017) LPELR – 41882 (CA); SSS & ORS v THE INCORPORATED TRUSTEE OF PEACECORPS OF NIG & ORS (2019) LPELR- 47274 (CA); JULIUS BERGER NIG PLC v IGP &ORS (2018) LPELR – 46127; BASHIR BALA NUHU v SHITTU SALEH &ORS (2014) LPELR – 24616 (CA). Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A

RATIO

PLEADINGS: WHAT CONSTITUTE PLEADINGS IN FUNDAMENTAL RIGHTS ENFORECEMENT PROCEEDINGS.

It is trite that, the facts averred in the affidavits placed before the Court by the parties in fundamental rights enforcement proceedings constitute the pleadings, and the adduced evidence in the matter, see; SSS & ANOR v MALLAM NASIR EL-RUFAI OFR; JACK v UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR- 1587 (SC); UKAOBASI v EZIMORA (2016) LPELR – 40174 (CA); ASCO INVESTMENT LTD & ANOR v EZEIGBO & ANOR (2015) ALLFWLR (PT. 767) P 766 AT 784.
In IKUDAYISI & ORS v OYINGBO &ORS (2015) LPELR – 40525, ABIRIYI, JCA (P.16, PARAS. A – E) held; The special procedure of the Fundamental Rights (Enforcement Procedure) Rules is not to be equated with the normal procedure in actions tried on pleadings and to which normal rules of pleadings apply. In the procedure under the Fundamental Rights (Enforcement Procedure) Rules, the affidavit constitute the evidence. If only evidence before the Court or judge is that of the complainant, that is the material he should consider…’’ In line with the above there are clear pleadings/evidence of the claim under exemplary/aggravated damages. Furthermore, in support of these are; paragraphs 10,11,12,13 and 16 of the affidavit are depositions of the acts and effect on his business, clientele, degradation, humiliation, reputation in the society and community of the towns where the town crier disseminated the directive especially he being an indigene of the community which is contrary to the rights guaranteed under the Constitution of the Federal Republic of Nigeria in Sections 37,38,39,41 & 42. The lower Court erred in law when she ignored the tell tail marks and failed to award compensation damages. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: AWARD OF COST.

its trite that cost follow events. The Appellant had expended money in the pursuit of this case which in my view ought not to have reached this stage, well-meaning leaders in the community ought to have waded into it to broker an amicable settlement.
The Apex Court in NNPC v CLIFCO NIG LTD(2011)LPELR – 2022 (SC) held that;
“The award of cost is entirely at the discretion of the Court, costs follow events in Litigation. It follows that a successful party is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See Ayeagbunam v Osaka 1993 5 NWLR Pt. 294 P. 449, Obayagbona v Obazee 1972 5 SC P 247.”
Per RHODES VIVOUR, JSC. Respondents submit that cost awarded by the lower Court is irreversible; I have examined same and cannot find any reason for not awarding cost. Cost is as of right unless he conducts himself or proves to be undeserving of it or unless there are special reasons for the deprivation of his entitlement, see; NIGERIAN POSTAL SERVICE v IBRAHIM MUSA (2013) LPELR – 20780(CA). Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

BARR ANDREW S. O. ANOWU APPELANT(S)

And

1. OBUENWE JOHNSON E. ULU 2. CHIEF PATRICK A. ENUDEMU RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal follows from the judgment of the High Court of Justice, sitting in Kwale, Delta State Coram G. B BRIKI- OKOSI, J delivered on 13th May, 2008, against the Claimant/Appellant in respect of the fundamental human rights enforcement procedure claims dated 26th January, 2006 thus;
A. A Declaration that the instruction/order of the 1st and 2nd Respondents to Emu residents or community members against Applicant to wit; not to allow Applicant to visit, meet, talk, move, associate, interact, assemble or do business with them and vice versa in Emu Unor and environs constitute an infringement of the Applicants fundamental rights protected by Section 39,40, 41 and 42 of the Constitution of Nigeria.
B. A Declaration that the restriction or restraining of the movement, association, assembly, speech or expression of the Applicant with residents or members of Emu Unor community and environs and vice versa that is community member should not talk, visit, associate interact, assemble or do business with Applicant instructed by 1st and 2nd Respondents is illegal, unconstitutional,

null and void.
C. An ORDER restraining the Respondents from further interfering in any manner whosoever with the Applicants enjoyment of fundamental rights to freedom of movement, association, assembly, speech, personal liberty or business transaction.
D. That the Applicant be paid the sum of N10,000,000 (Ten million Naira) being damages for the aforesaid illegal and unconstitutional violation/infringement
E. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.’’

After hearing parties’ arguments, the lower Court granted reliefs A,B & C but made no award in respect of the claims for damages and cost. See pages 101 of the record of proceedings.

The Appellant dissatisfied with that part of the decision, filed a Notice of Appeal on 12th August, 2008.
Sequel to the rules of the Court of the Appeal, parties filed and exchanged briefs thereon; Appellant’s brief was filed on 19th March, 2019 and settled by Andrew S.O. Anowu Esq of A. Anowu & Associates. The Appellant himself distilled two issues for determination thus;
1. WHETHER APPLICANT IS ENTITLED

TO COMPENSATORY AWARD OF EXEMPLARY AND GENERAL DAMAGES?
2. WHETHER APPELLANT IS ENTITLED TO AWARD OF COSTS ?

While the Respondents filed their brief which they titled “A SUCCINCT ACCOUNT OF RESPONDENTS BRIEF’’ on 5th February, 2019, which was settled by J.O. Oweibi, Esq., of Oweibo & Co and adopted the issues formulated by the Appellant.

A brief facts of the case leading to this appeal is that the 1st and 2nd Respondents who are elders of Emu Unor community (paramount Traditional rulers and Onotu Uku/Odogwu Ebi) of Emu Unor community instructed the Town crier to make announcement throughout the town that Appellant is ostracized and nobody in the community (Emu Unor and entire Emu Kingdom) should visit, talk, associate, assemble, meet, move, interact or do business with Appellant and his family members in Emu kingdom. The Respondents took these steps because they allege that he refused to serve “juju” to appease the gods of the land, contending that it is against his religious beliefs.

The Appellant then filed an action against them on the grounds that his Fundamental Human right enshrined in the 1999

Constitution has been violated and he was entitled to damages. The lower Court found for him but granted him compensatory damages which he felt ought to be exemplary and general damages, hence this appeal which is against that portion of the judgment.

ISSUE 1
Appellant submitted that the lower Court found that the announcement was made and that the Respondents are not allowed to make or do such acts of restriction, discrimination, banning, ostracizing, shunning etcetera which are largely against Sections 38, 39, 40, 41 of the Constitution on freedom of movement, association, assembly, discrimination, religious worship and freedom of speech/expression.
He relied on ABIOYE v YAKUBU (1991) 5 NWLR (PT. 190) 130 that where there is an infraction of the Constitution, the Court will nullify it.

He contended that the Court ought to have awarded exemplary and general damages as claimed in relief D, on the grounds that the acts of the Respondents are oppressive, arbitrary and unconstitutional. He relied on AFRIBANK v ONYIMA (2004) 2 NWLR AT 661; ELIOCHIN (NIG) LTD v MBADIWE (1986) 1 NWLR (PT 14) 47; JOSEPH ODOGU v ATTORNEY GENERAL OF FEDERATION (1996)

6 NWLR (PT. 456) 508; ASHBY v WHITE (1703) LD,RAYNI MASTER OF THE ROLLS 838; FEDERAL MINISTRY OF INTERNAL AFFAIRS v SHUGABA; EKPU v AG OF FEDERATION (1998) H.R.L.A 391; DR OLU ONAGORUWA VS IGP (1993) 5 NWLR (PT 194) 593 AT 650-651.

He further submitted that once it is shown that there is an infringement of the constitutional provisions in Chapter IV, he needs not show anything more.

The Appellant further in aid of awarding damages to serve as deterrent against naked, arrogant, arbitrary and oppressive abuse of power which has been endorsed by the Apex Court but must be excessive; UZOUKWU v EZEONU II (1996) 6 NWLR 724 AT 777-778; OKONKWO v OGBOGU (1996) 37 LRCN 580. That the dignity of the Appellant was lowered and the announcement amounted to a trespass to a person.
Appellant in addition submitted that by virtue of him being a legal practitioner following the announcement/implementation curtailing the above freedom meted out to him by the Respondents no doubt gravely affected his dignity, loss of business which is same as withdraw of service, his only means of livelihood is entitled to damages for their flagrant violation of Appellants’

rights. He cited in aid; COMFORT NDUCHUKWUKA & ANOR v OBI OKONJI & 2 ORS (2007) C.H.R.199 AT 201 – 203.

In conclusion on this issue, he posits that a Court is empowered to make appropriate order of award of damages for such infringement. The Respondents in response in his brief, submitted on the question if the Applicant has made out his case for special or exemplary damages; that it must be claimed and made out before they can be awarded to redress the infringement of fundamental right. He relied on YOURIN v AYUYA (2001) 37 WRN 85; EKPUK VS OKON (2001) 37 WRN; NDIC v SAVANNAH BANK PLC (2002) 51 WRN 19; INYANG v EBONG (1983) 1NCR 342. He submitted that the Appellant claimed exemplary damage but regrettably failed to prove it to the satisfaction of the Court, he referred to page 100 of the record.

ISSUE 2
Appellant relying on MALLAM IDI WURO v UNITED AFRICAN COMPANY LTD (1956) SCNLR 99 submitted that the general basis for award of cost under our adversarial legal system is to compensate the successful party. And that a Court will only interfere with costs in the discretion of the trial Court where the Court did not

exercise discretion or did not do it judicially. He cited UNIVERSITY OF LAGOS & ANOR v AIGORO (1985) 1 NWLR (PT 1) 143 SC; ELENDU v EKWOABA (1998) 12 NWLR (PT 578) 320 SC that it is reversible if it will result in injustice.

Finally, he submitted that the Court should take into consideration the facts of the circumstances in the case, the Appellant is entitled to costs as it follows event and that the judge ought to have exercised discretion in his favour.

In response on the issue 2, the Respondents submit that it is discretionary to the trial Court and the Court of Appeal does not ordinary interfere in those matters and that this Court cannot reverse on order of no cost.

RESOLUTION
This is a Fundamental Human Rights Enforcement Rules application under the 1979 which was commenced by motion exparte for leave followed by a motion on notice filed on 16th January, 2006.
In an application, the affidavit in support is the statement of claim in the matter and sets out the issues leading to the complaint, the lower Court made a finding of a breach of this rights and awarded damages but the complaint is that the Court ought to have awarded

exemplary damages due to the level of breach by the Respondents. In EZEAGU & ORS v NWONU (2016) LPELR – 40164(CA), on the nature of exemplary damages this Court stated the nature of compensatory and exemplary damages thus;
“Now what is the essence of exemplary damages. The Supreme Court in Chief F. R. A. Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (pt. 124) 1; (1990) 1 S.C. 23; (1990) LPELR – 3487 (SC) at pages 45 – 47 per his Lordship Eso, JSC, succinctly stated that: “Exemplary damages are usually awarded where statutes prescribe them and apart from this, they are only awarded for two categories to wit (1) Oppressive, arbitrary or unconstitutional action by servants of the government. See Lord Devlin in Rookes v. Bernard (1964) A. C. 1230 matters for compensation are different from matters for punishment. In MC Caney v. Associated Newspapers (1965) 2 Q. B. 104, Pearson, L. J. Held “Compensatory damages… may include not only actual pecuniary loss and anticipated loss or any social disadvantages which result or may be thought likely to result from the wrong which has been done.” This is not punishment. Punishment is best

illustrated in the dictum of Lord Hailsham in Broome v. Cassel (1972) A. C. 1070, where Lord Hailsham regarded the principle of exemplary damages as teaching the defendant that tort does not pay. Lord Devlin has formulated in Rookes v. Bernard that exemplary damages includes cases where the defendant with a cynical disregard for plaintiff’s rights has calculated that the money to be made out of his wrong will probably exceed the damages at risk. All these, that is in regard to exemplary damages include some deliberations that warrant punishment. (2) Where the defendant’s act which has been held to be tortuous was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty. (Another act of deliberateness).” Further see Anthony Odiba v. Tule Azege (1998) 7 S.C. (pt. 1) 79; (1998) 2215 (SC); (1998) 9 NWLR (pt. 566) 370; G. K. F. Investment Nig Ltd v. NITEL Plc (2009) LPELR – 1294 (S.C); (2009) 15 NWLR (pt. 1164) 344. Thus, simply put, theard awof exemplary damages is primarily punitive particularly where the conduct of the defendant has been shown or demonstrated to be

tainted or coloured with malice, fraud, insolence, flagrant, disregard for the plaintiff’s human rights and dignity or disregarding every right principle which distinguishes the action of civilized men from the primordial instincts of retaliation for a perceived wrong done by the plaintiff against the defendant. Hence, exemplary damages are meant to punish the defendant for breaching the legal right of the plaintiff. Therefore, it is more than compensating the person whose rights have been adjudged as having been breached. It can be called an extra compensation, but certainly not double compensation as submitted by the learned Attorney General for the Cross – Respondents.”
Per YAKUBU, J.C.A (Pp. 38-41, PARAS. D)
Furthermore, in the case of IGWE v AMATU & ANOR (2013) LPELR- 24204 (CA), this Court held thus on the issue;
“Before concluding on this issue, I am constrained to comment on the issue of exemplary damages raised by the Appellant for the first time in his Brief of argument before this Court. I agree with learned Counsel for the 2nd Respondents that there was no claim for exemplary damages before the trial Court, neither was it made an

issue before the Lower Court. What the Lower Court awarded the Applicant was in the nature of compensation as provided for in Section 35 (6) of the 1999 Constitution. It was not an award of exemplary damages. There is a gulf of difference between the two. Yet, it would appear that the Appellant is using the two words interchangeably. In Joseph Odogu V Attorney-General of the Federation (1996) 7 SCNJ 132 @ 140, the Supreme Court, per Ogundare, JSC, held thus: “Having regard to the circumstances of this case, I have no doubt in my mind that a case for the award of exemplary damages, if claimed, was made out. There was, however no specific claim for exemplary damages. The Appellant came to Court by way of an application for the enforcement of his fundamental right. This application was supported by a 36-paragraphs affidavit sworn to by one Clement Nwankwo, Legal practitioner. Nowhere in the application itself nor in the affidavit in support was any claim made for exemplary damages”. The learned Jurist continued thus on the same page of the Report: “Our attention was drawn at the oral hearing to the case of Shugaba Abdulrahman Darman V Minister for Internal Affairs

(1981) 2 NCLR 459 where the Court awarded exemplary damages. The distinction lies in the fact that in that case aggravated and exemplary damages were specifically claimed and pleaded. In the matter before us, there was no such claim made for exemplary damages. I think it will be wrong to award it even though on the facts the case was made out for its award, had it been claimed. Exemplary damages must be claimed and proved before they can be awarded – See Eliochin (Nig.) Ltd V Mbadiwe (supra). Damages in law are of different categories: general, special and exemplary. General damages are such as the law will presume to be the direct or probable consequence of the act complained of, while special damages are such as the law will not infer from the nature of the act, and do not follow in the ordinary course of events but are exceptional in character. See Akinfosile V Mobil (1960) NCLR 253. Exemplary damages, on the other hand, are usually awarded whenever the Defendant’s conduct is sufficiently outrageous to merit punishment, as in cases where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Exemplary damages

must be claimed and proved before they can be awarded. Where pleaded and proved, exemplary damages are recoverable if the plaintiff is the victim of the punishable behaviour of the defendant. However, the award of such nature of damages should be moderate; the means of the parties must be considered and it being true that, while a small exemplary award would go unnoticed by a rich defendant, it is equally true that even a moderate award might cripple a poor defendant. See again Odogu V A-G Federation.” (Underlining mine)
Per SANKEY, J.C.A (PP. 41-44, PARAS. B-A)
By virtue of Section 46(1) of the Constitution, Order 1 Rule 2 (1), (2) & (3) of Fundamental Rights Enforcement Rules, 1979, a redress follows breach which includes an entitlement to be compensated.
This is the principle of awarding plenary damages but unlike the ordinary general damages which follows a breach of a constitutional right the condition precedent is that, an Applicant must plead and prove exemplary damages before it is awarded; it is not awarded as a matter of cause. See; ODOGU v A-G FEDERATION (1996) 7SCNJ 132 @140.

The Appellant had asked in relief D for; “N10m

being damages for the aforesaid illegal and unconstitutional violation/infringement of the Applicants right.’’

In the supporting affidavit of 17 paragraphs, the Applicant in paragraph 15 thereof deposed;
“That the Applicants is entitled to compensation for injury and damages caused by 1st and 2nd Respondents infringement of his fundamental rights as deterrent against such arrogant and arbitrary acts.”

But my findings will therefore affect the award of damages to the Applicant.”

No award was made in respect of relief D which is the claim for compensatory damages, this is the major complaint of the Appellant, the lower Court had made clear findings that the town crier announcement was made, failed to take judicial notice of the profession of the Appellant and the consequential effect thereof.

of pleadings apply. In the procedure under the Fundamental Rights (Enforcement Procedure) Rules, the affidavit constitute the evidence. If only evidence before the Court or judge is that of the complainant, that is the material he should consider…’’

In line with the above there are clear pleadings/evidence of the claim under exemplary/aggravated damages.

Furthermore, in support of these are; paragraphs 10,11,12,13 and 16 of the affidavit are depositions of the acts and effect on his business, clientele, degradation, humiliation, reputation in the society and community of the towns where the town crier disseminated the directive especially he being an indigene of the community which is contrary to the rights guaranteed under the Constitution of the Federal Republic of Nigeria in Sections 37,38,39,41 & 42. The lower Court erred in law when she ignored the tell tail marks and failed to award compensation damages.
Paragraph 6, 8f, g of the Reply to counter Affidavit at page 44 of record are depositions by Appellant of the fact that people are out of fear still not associating with him, and his relations which acts include; visit,

assemble, grind cassava and the Respondents still harass and threaten Emu people in and outside the community,
Coupled with this, in addition, that people are fined for associating with him; he named Moses Amadi, Chief Anthony Ochiofu his age long friends who were both fined.
Another affidavit Reply to Further Counter Affidavit, paragraphs 9 -13 marked L at page 48 of the record of OZUEM OKORO, an indigene of Emu, in paragraph 3 stated that;
“Some community members with poor minds started avoiding the Applicant while others disregard such as illegal uncivilized announcement or orders.”

I have examined the affidavit evidence and counter affidavit filed and in paragraph 6 thereof the Respondents admitted ostracising the Appellant, this definitely is against the dignity and freedom of association, which amounts to a breach of the 1999 Constitution as amended.
These were for alleged acts which are criminal and ought to be handled by the police and possibly prosecution.
The lower Court definitely did not consider the affidavit evidence which served as a guide in fundamental matters and therefore erred in not awarding damages.

In JIDE ARULOGUN v COMM. POLICE LAGOS STATE &ORS (2016) LPELR- 40190 (CA), this Court held that where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach.
For the avoidance of doubt, common law principles on award of damages do not apply to matters brought under fundamental rights, when a breach is proved the victim is entitled to compensation even if no specific amount is claimed.
The damages automatically accrue. See; OZIDE & ORS v EWUZIE &ORS (2015) LPELR – 24482 (CA); IGWEOKOLO v AKPOYIBO & ORS (2017) LPELR – 41882 (CA); SSS & ORS v THE INCORPORATED TRUSTEE OF PEACECORPS OF NIG & ORS (2019) LPELR- 47274 (CA); JULIUS BERGER NIG PLC v IGP &ORS (2018) LPELR – 46127; BASHIR BALA NUHU v SHITTU SALEH &ORS (2014) LPELR – 24616 (CA).

In the light of the above, I find that the Appellant is a legal professional who is being subjected in this century to ostracization, with members of his family humiliated, degraded, stress, loss of dignity from his own community which he grew up and has

family ties, this certainly would affect his business which is clientele and position him being viewed with odium from the community members some of which dared the banning order and were fined. Having found that there was a breach of the constitutional rights of the Appellant by the announcement of the order by a town crier, these deposed acts are crucial to an award.
When should exemplary damages be awarded? It has been stated by this Court thus;
“Exemplary damages are awarded whenever the defendants conduct is sufficiently outrageous to merit punishment, as in cases where it discloses, malice, fraud, cruelty, insolence, flagrant disregard of the law and the like …However the award of such nature of damages should be moderate; the means of the parties must be considered and it being true that while a small exemplary award would go unnoticed by a rich defendant, it is equally true that even a modest award might cripple a poor defendant see ODOGU v A.G FEDERATION.’’
Per SANKEY, JCA in IGWE v AMATU & ANOR (SUPRA).

Having been guided by the above dictum; the Appellant is a legal practitioner, indigene of Emu while the

Respondents are leaders, that is, traditional rulers of Emu. The breaches are constitutional in nature and Fundamental Human Rights recognized by the Federal Republic of Nigeria.

I shall award the sum of N2,000,000.00 (Two Million Naira) in favour of the Appellant, to serve as a deterrent in the community and environs.
The second issue is that of cost, its trite that cost follow events.

The Appellant had expended money in the pursuit of this case which in my view ought not to have reached this stage, well-meaning leaders in the community ought to have waded into it to broker an amicable settlement.
The Apex Court in NNPC v CLIFCO NIG LTD(2011)LPELR – 2022 (SC) held that;
“The award of cost is entirely at the discretion of the Court, costs follow events in Litigation. It follows that a successful party is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See Ayeagbunam v Osaka 1993 5 NWLR Pt. 294 P. 449, Obayagbona v Obazee 1972 5 SC P 247.”
Per RHODES VIVOUR, JSC.

Respondents submit that cost awarded by the lower Court is irreversible; I have examined same and cannot find any reason for not awarding cost. Cost is as of right unless he conducts himself or proves to be undeserving of it or unless there are special reasons for the deprivation of his entitlement, see; NIGERIAN POSTAL SERVICE v IBRAHIM MUSA (2013) LPELR – 20780(CA).
I award the modest cost of N20,000.

Having resolved issues 1 and 2 in favour of the Appellant, the appeal succeeds and is allowed. The judgment of High Court of Justice Kwale, Delta State per G. B BRIKI – OKOSI, J delivered on 13th May, 2008 is hereby varied to include an award of N2,000,000.00 (Two Million Naira) as damages and cost N20, 000 of the action.
Cost of N100,000 in this appeal against the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA O. OBASEKI-ADEJUMO in the instant appeal.

This is to state that I am in total agreement with the judgment of His Lordship in the appeal and have nothing useful to add by way of contribution.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the opportunity of reading in draft before now, the lead Judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA and I agree that the appeal deserves to succeed.

The Appellant had proved the violation of his fundamental human rights to dignity and association, movement, assembly, speech, personal liberty and business transaction as enshrined and guaranteed by Sections 39, 40, 41 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); And the consequential and appurtenant remedies of compensation in damages, injunction and costs as claimed by him. Indeed, apology, anures.

The Respondents, by what they tagged “Succinct Account of Respondent’s Brief” of 5th February, 2019 and settled by J. O. Owibi, Esq., of Oweibo & Co., strictu sensu could be said not to have filed any Respondents’ Brief at all, in this appeal, as an “Account of a Respondents Brief” cannot be the same as the “Respondents Brief” itself. It is an admission that none was flied in answer to this appeal.

In any case, there was overwhelming evidence before the trial Court and the circumstances of this appeal are such that exemplary damages ought to have been awarded in favour of the Appellant.

I therefore join my Lord in the lead judgment in awarding the exemplary damages of N2,000,000 (Two Million Naira only) against the Respondent and in favour of the Appellant.

It is hoped that this shall be one of the umpteenth reminders from the Bench that custom is dynamic and a mirror of the acceptable usages of the society that are influenced by the changing tides and waves of the times. In this wise, the supreme law of the land – The Constitution of the Federal Republic of Nigeria, 1999 (as amended) and globally comparative progressive traditions of liberty and dignity, prevail.
Appeal allowed in terms of the damages and costs ordered in the lead judgment.

Appearances:

A.S.O. Anowu For Appellant(s)

J. Owolo, Esq. For Respondent(s)