CLIMAX HOTEL NIGERIA LIMITED & ANOR v. VENITEE GLOBAL NIGERIA LIMITED & ORS (2019)

CLIMAX HOTEL NIGERIA LIMITED & ANOR v. VENITEE GLOBAL NIGERIA LIMITED & ORS

(2019)LCN/12693(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 12th day of February, 2019

CA/K/51/2016

RATIO

DAMAGES: WHETHER THE APPELLATE COURT CAN INTERFERE ON DAMAGES

“An Appellate Court will not interfere with general damages awarded by the trial Court unless it is shown that such award was so low or too excessive, as to amount to an erroneous estimate, having regard to the evidence. See B.B. Apugo & Sons Ltd v Orthopaedic Hospitals Management Board (OHMB) (2016) 13 NWLR Part 1529 Page 206 at 257 Para B-C per Kekere-Ekun JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 185 Para F-H; (2015) All FWLR Part 734 Page 48 at 68 Para D per M.D. Muhammad JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES:

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. CLIMAX HOTEL NIGERIA LIMITED
2. CHIEF MAXWELL IBEH – Appellant(s)

AND

1. VENITEE GLOBAL NIGERIA LIMITED
2. MR. VICTOR AJISE
3. COMMISSIONER OF POLICE, KADUNA STATE – Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):

The Appellants in this appeal against the judgment of the Kaduna State High Court delivered on the 17th November 2015 by Hannatu Balogun J, were the Defendants/Counterclaimants before the said Court.

The case of the 1st and 2nd Respondents, as Plaintiffs before the lower Court, were that the 2nd Respondent was contacted by a friend in hotel management, one Austine Zibiri (hereafter referred to as Zibiri), to finance the leasing of a hotel for the purpose of managing it. He agreed to finance the lease, so Zibiri would manage the same. It was a requirement of the Agreement that the Lessee would use a registered company and that the sum of N3.5 M would be deposited for the 1st quarter of the lease. The Lease Agreement (Exhibit P1) was entered into on 4/7/12 between the 1st Respondent Company and the 1st Appellant for a duration of 3 years, for a total sum of N14Million to be paid quarterly.

The sum of N3.5 Million was paid to the 2nd Appellant, the alter ego of the 1st Appellant, for the first quarter of the lease agreement. Barely three months into the Lease Agreement, the 1st and 2nd Respondents, demanding the next quarterly payment, contrary to the Lease Agreement, had to pay to the Appellants the sum of N700,000.00 (Seven Hundred Thousand Naira). The 2nd Respondent was transferred to Lagos by his employer, the Petroleum Equalization Fund, in July 2012 and he entrusted the business to Zibiri.

The Appellants, in spite of the further payment of N700,000.00, forcefully took over possession of the hotel on the 23rd April 2013, only nine months into the agreement, without any warrant of Court for possession. They followed this up by the institution of a criminal action against the 1st and 2nd Respondents and others before the Chief Magistrate Court, Ibrahim Taiwo Road, Kaduna, for Criminal Conspiracy, Criminal Intimidation, Criminal Breach of Trust, Cheating, Mischief, Keeping a Brothel and Negligent Conduct causing danger to person or property. The Magistrate issued a Bench Warrant for the arrest of the 2nd Respondent. Men of the 3rd Respondent arrested the 2nd Respondent in Lagos, brought him to Kaduna and detained him for two days, between 22nd to 24th October 2014.

While in the custody of the 3rd Respondent and as a pre-condition for his bail, he was forced to execute a Memorandum of Understanding/Payment Undertaking (Exhibit P9) prepared by V.A.B. Ewuzie & Co, the Appellant’s Solicitor, and was forced to issue three post-dated cheques to cover the sum of N12 Million as purported arrears of rent. The 2nd Respondent was again arrested and detained from 18th March 2015 to 21st March 2015 and made to sign further undertakings.

They accused the Appellants of using the criminal complaint before the Magistrate Court to extort money and to harass and intimidate them in respect of a purely civil transaction. In consequence, they instituted the action before the lower Court for declarations that the transaction between the parties was civil and that the Memorandum of Understanding/Undertaking was void, having been made under duress. They also sought general damages for breach of contract.

The Appellants, while admitting the arrest of the 2nd Respondent, alleged that the arrest was pursuant to an order of the Chief Magistrate Court in Case No KMD/138DC/2013 Climax Hotel Nig. Ltd & anor v Venitee Global Nig Ltd and Anor, which was referred to the Police for investigation. They accused the 1st and 2nd Respondents of refusing to pay the N3.5 Million quarterly as stated in the agreement, rather converting the said sums to their own use from proceeds of the hotel. They accused the said Respondents of vandalizing and destroying the Appellants property and their generating sets and turning the property into a brothel.

It was their case that upon the release of the 2nd Respondent from police custody, he sought settlement of the case out of Court with the Appellants in their Counsel’s chambers, V.A.B. Ewuzie & Co, following which the terms of their agreement were reduced into writing and the Memorandum of Understanding/Payment Undertaking (Exhibit P9) executed by both parties.

They further alleged that, pursuant to this Memorandum, the 2nd Respondent voluntarily issued three cheques, to the said Counsel, which were returned unpaid. In consequence, a petition was written to the 3rd Respondent who arrested the 2nd Respondent in March 2015 and brought him to Kaduna and later released him on bail but to report to the Police for investigation, only for him to file an action before the lower Court in a bid to frustrate the criminal action.

They counterclaimed for the following:

The sum of N12,000,000.00 (Twelve Million Naira) only, being the agreed sum the Plaintiffs owe the 1st and 2nd Defendants/Counter Claimants as per the memorandum of understanding/payment undertaking between the parties dated 24th day of October, 2014 and for which the plaintiffs have refused and failed to pay despite repeated demands and entreaties by the counter claimants.

In proof of their various cases, the Appellants and 1st and 2nd Respondents called one witness each. The 3rd Respondent filed no process nor participated in the proceedings.

The trial Judge in her judgment held that the Memorandum of Understanding was obtained under duress and made involuntarily. It was consequently declared a nullity. General damages of N2.5 Million were awarded against the Appellants for breach of contract. The Counterclaim of the Appellants was dismissed.

Aggrieved by this judgment, the Appellants filed a ten ground Notice of Appeal on 1/11/15. This was followed by a Brief of Arguments filed on 18/10/16, settled by V.A.B. Ewuzie Esq, in which eight issues were distilled for the Court’s determination, as follows:

1. Whether the learned trial Judge rightly assumed jurisdiction when she reviewed or pronounced on a criminal case pending before a Chief Magistrate Court when the matter was brought outside the provisions of Order 37 of the Kaduna State High Court (Civil Procedure) Rules, 2007 and also in view of the provisions of Section 46 (3) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and Order 11 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 made in pursuance thereto.

2. Whether the learned trial Judge properly and adequately assessed and evaluated the evidence before her in arriving at her decision that the 1st & 2nd Respondents proved their claim against the Appellants and dismissed the Appellants counter-claim.

3. Whether the 2nd Respondent’s arrest upon a Chief Magistrate’s warrant in a criminal case can be said to be forceful, illegal and unlawful upon which the learned trial Judge awarded N2,500,000.00 (Two Million Five Hundred Thousand Naira) as general damages against the Appellants.

4. Whether the memorandum of understanding/payment undertaking dated 24th October, 2014, voluntarily made and executed by the 1st & 2nd Respondents in the presence and with the consent/endorsement of their Solicitors and Guarantor and the post dated cheques issued in respect thereto, can be said to be made and issued under duress or undue influence and therefore illegal, null and void.

5. Assuming, without conceding, that the alleged arrest and detention of the 2nd Respondent by the 3rd Respondent in execution of Court’s warrant is illegal and unlawful, would the Appellants be held liable for such acts of the 3rd Respondent who are constitutionally empowered to make arrest, detain and prosecute persons suspected to have committed crime?

6. Whether the Appellants are entitled to their counter-claim of N12 million as per the memorandum of understanding/payment undertaking between them and the 1st & 2nd Respondents in view of the settled principle of law that parties are bound by their agreements and that oral or extraneous evidence/fact cannot contradict, alter, add or vary such documentary evidence.

7. Whether the learned trial Judge has competence or jurisdiction to entertain the suit in its entirety as there was no valid amended writ of summons, statement of claim and other ancillary Courts processes before her at the time of hearing the suit.

8. Whether the learned trial Judge rightly awarded and granted to the 1st & 2nd Respondents (Plaintiffs at lower Court) N2,500,000.00 (Two Million Five Hundred Thousand Naira) only as exemplary/general damages where there is no evidence to that effect and against all known legal principles guiding award of damages.

The 1st and 2nd Respondents, in turn, filed a Respondents Brief of Arguments on 16/11/16, settled by M.B. Yusuf Esq. in which three issues were distilled for determination, as follows:

1. Whether the suit of 1st and 2nd Respondents at the trial Court was fundamentally defective.

2. Whether, in view of the state of pleadings and evidence led, the learned trial judge was right in entering judgment for the 1st and 2nd Respondents for breach of contract.

3. Whether the Appellants have proved their Counterclaims against the 1st and 2nd Respondents to be entitled to the judgment of the trial Court.

Even though I find the issues for determination raised by the Appellants Counsel quite prolix, I shall nevertheless cull from his issues, those that I consider that arise for determination, as follows:

1. Whether the learned trial Judge rightly assumed jurisdiction in this case.
2. Whether the processes filed by the Respondent are fundamentally defective.
3. Whether the Memorandum of Understanding/Payment Undertaking dated 24th October, 2014 executed by the 1st & 2nd Respondents was a nullity.
4. Whether the lower Court was right to have entered judgment in favour of the 1st and 2nd Respondents.
5. Whether the lower Court was right to have dismissed the Counterclaim of the Appellants.

The 1st issue for determination is:
Whether the learned trial Judge rightly assumed jurisdiction in this suit.

The Appellants Counsel has submitted that the lower Court lacked jurisdiction to entertain the suit, having no powers to pronounce upon a criminal trial pending before a Chief Magistrate Court, the matter not being one brought for judicial review under Order 37 of the Kaduna State High Court (Civil Procedure) Rules 2007. He submitted that if there is an allegation of breach of fundamental rights, the procedure to follow is provided under Section 46(3) of the Constitution of the Federal Republic of Nigeria (as amended) and the Fundamental Rights (Enforcement Procedure) Rules, 2009 and not by way of Writ of Summons as done in the instant case. Citing a number of authorities, he submitted that where certain conditions are to be met before the commencement of an action or where a special procedure is prescribed for the enforcement of a particular right, the same must be complied with, before the action can be said to be competent.

He accused the trial Judge of pronouncing on the first claim, which can only be entertained through judicial review by way of prerogative writ of certiorari and prohibition. The Court, he said, can also not pronounce upon a case pending before a Court of competent jurisdiction when there was no application before it to do so. The 1st and 2nd Respondents before the lower Court were seeking declarations in respect of the enforcement of their fundamental rights and also for a judicial review of the criminal case against them pending before a Chief Magistrate Court. Furthermore, Claims B-F before the lower Court were claims that border on breach of fundamental human rights which can only be brought by way of the special procedure stipulated in Section 46(3) of the Constitution. Counsel alleged that since the totality of the claims of the 1st and 2nd Respondents and evidence adduced, bordered on breaches of their fundamental human rights, an action for the enforcement of these rights can only be commenced by an originating process as provided under Order 37 of the Kaduna State High Court (Civil Procedure) Rules Supra. The assumption of jurisdiction by the lower Court was thus in error.

The 1st and 2nd Respondents Counsel, in their Brief of Arguments, pointing to excerpts of the Judgment of the lower Court, submitted that the lower Court had struck out reliefs bordering on breaches of the Respondents fundamental rights and had thus properly assumed jurisdiction in the matter.

To properly understand the contentions of Appellants Counsel, it is necessary to set out the claim of the 1st and 2nd Respondents before and after the amendment granted to the said Respondents by the Court.

From the Records, the 1st and 2nd Respondents, subsequent to the initial pleadings, filed a motion for amendment, dated 22/6/15 (Page 83 of Record), seeking the following reliefs:

1. An order granting the Plaintiffs/Applicant leave to amend the writ of summons, statement of claim and other ancillary processes in the manner underlined in the proposed amendment statement of claim which is annexed as Exhibit 1 to the affidavit in support.

2. An order of this Honourable Court granting the Plaintiff/Applicants leave to add Mr. Austine Zibri as additional plaintiff’s witness.

3. An order deeming the proposed Amended Writ of summons, Statement of claim, accompanied by witnesses depositions, new witness deposition of Mr. Austine Zibri and other ancillary process in this suit as duly filed and served the filing fees having been paid.

The reliefs sought in the proposed amended Statement of Claim exhibited to the application, are the following, as contained at Pages 95 and 96 of the Record:
a) A declaration that the relationship between the 1st plaintiff and the 1st defendant is purely contractual transaction, thus civil and not criminal.

b) A declaration that the memorandum of understanding/payment undertaking made on 24th of October 2014 and the cheques dated 20/1/2015, 26/5/2015, 20/9/2015 issued to V. A. B. Ewuzie & Co by the 2nd Plaintiff in consequence of his arrest and while in the custody of the 3rd defendant was made under duress or undue influence and amounted to illegal, null and void.

c) A declaration that the forceful arrest, detention, humiliation, intimidation and threat of the 2nd Plaintiff by the 3rd defendant at the instance of the 1st and 2nd Defendants on the 20th March 2015 on a purely contractual transaction is illegal and unlawful.

d) A declaration that the plaintiffs are not indebted to the 1st and 2nd Defendants to the sum of N12,000,000.00 as contained in the memorandum of understanding/payment undertaking made on the 24th October 2014 under duress and or any sum at all.

e) An order of perpetual injunction restraining the defendants by their selves, their servants, agents or any other person acting on their behalf from further arresting the 2nd Plaintiff or any of his officers on a purely civil transaction that has no criminal elements whatsoever.

f) General damages in the sum of 5 million Naira for the breach of the lease agreement agony and trauma the 2nd plaintiff went through in the hands of the defendants on a purely civil transaction.

g) Cost of filling this action.

This application was opposed by the Appellants Counsel. He raised similar arguments as before this Court, on the issue of the lower Court’s jurisdiction to entertain the claims, complaining that the suit was grossly incompetent and fundamentally defective as it was brought under an ordinary writ instead of a prerogative writ and under the fundamental rights procedure.

The lower Court, in its Ruling at Pages 197-199 of the Record, while refusing some amendments sought to certain paragraphs of the Statement of Claim, granted others.

In ruling as it did, the lower Court asked itself, the question is what is or are the primary reliefs in this matter and is the principal relief that of fundamental rights, certiorari or a declaration or contract.

Its response, at Pages 228-230 of the Record was:

I have looked at the reliefs in this matter reproduced supra and the main relief is asking for declarations. The plaintiffs are asking this Court to interpret and enforce the provisions of a contract exhibit P1 vis-a-vis an undertaking exhibit P9 and to make a declaration that the matter between the parties was contractual and to further declare that they are not indebted to the defendants and to award damages for a breach of contract. These in my view are the main reliefs. The Plaintiffs are also asking this Court to declare the 2nd plaintiff’s arrest detention etc. as unlawful. This is an enforcement of the Plaintiff’s fundamental rights. They also ask for general damages for the agony and trauma sustained as a result.

With regards to the certiorari claim, it must be noted that when the Plaintiffs applied to include this claim in their reliefs, the Defendant objected and I upheld the objection and refused the amendment. So as it stands, this aspect was not included in the claim.

In the circumstance, only the above two types of claims are before this Court.

The law is trite that an action under fundamental rights procedure can only be brought as such when the main or principal relief sought is the enforcement of the applicant’s fundamental rights otherwise, the matter shall be brought by ordinary summons. I hold that the reliefs that deal directly on the contract as well as the memorandum of understanding based on the contract declarations on indebtedness as well as damages are properly brought before this Court by means of a writ of summons. These are reliefs B, D and F.

However, the reliefs that are on the arrest, detention as well as injunction are clearly based on the enforcement of the plaintiff’s fundamental rights. These are reliefs C and E.
Reliefs A and F are relevant subsidiary reliefs to either claims so they are competent before this Court.

In the circumstance, I resolve the 1st and 2nd defendants first issue partly in favour of the plaintiff and partly in favour of the defendants. Reliefs C and E are consequently struck out. They are to be commenced under the FREPR 2009.

I must confess at my inability to comprehend the arguments of the learned Counsel to the Appellants. The trial judge, in her ruling, struck out Paragraphs C and E, leaving the reliefs claimed in Paragraphs A, B, D and F of the proposed Amended Statement of Claim., which extant reliefs, for emphasis, are the following:

a) A declaration that the relationship between the 1st plaintiff and the 1st defendant is purely contractual transaction, thus civil and not criminal.

Reliefs C and E, as aforesaid, were struck out.

Is learned Counsel saying these reliefs above border on certiorari, breach of fundamental human rights and thus cannot be entertained? Can he be heard to be saying that any relief that has a bearing on the infringement or breach of a person’s rights cannot be entertained by way of a Writ of Summons and Statement of Claim? If this is the contention of Counsel, he appears to have totally misapprehended the law.

The fact that averments in a Plaintiff’s claim touch on breaches to his fundamental human rights and alleges torture to his person and otherwise forms grounds for commencing an action under the fundamental human rights procedure, does not stop him from instituting an action for damages for any breaches to his rights by way of an action by Writ of Summons, I hold.

A Plaintiff whose rights have been infringed is not limited to seeking redress only under the Fundamental Rights (Enforcement Procedure) Rules. He may wish to bring an action by other means, including by Writ of Summons, against the offender.

The whole purpose of enacting the Fundamental Rights (Enforcement Procedure) Rules 2009 is to protect the citizen against arbitrary arrest and detention by the Government and its agencies and also individuals. It provides a procedure for speedy intervention by the Courts in protection of these rights involving the liberty of the individual and is given priority over all other matters and heard immediately they are filed in Court. See Benson v Commissioner of Police (2016) 12 NWLR Part 1527 Page 445 at 466 Para B-D per Rhodes-Vivour JSC; Danfulani v EFCC (2016) 1 NWLR Part 1493 Page 223 at 246-247 Para F-H per Oludotun Adefope-Okojie JCA.

It is not the position of the Courts that where fundamental human rights are infringed, the Applicant must institute the action under the fundamental human rights procedure and no other. The procedure under the Fundamental Rights (Enforcement Procedure) Rules is merely to avoid the cumbersome process of a regular suit. The 1st and 2nd Respondents, I accordingly hold, were at liberty to choose to sue either under this procedure or by other action. The only stricture to instituting an action under the Fundamental Rights (Enforcement Procedure) Rules is that in order to qualify for that procedure, the principal relief should be for the enforcement of or securing the enforcement of this right. See – Emeka v Okoroafor (2017) 11 NWLR Part 1577 Page 410 at 479 Para D-F per Kekere-Ekun JSC; University of Ilorin v Oluwadare (2006) 6-7 SC Page 154; (2006) All FWLR Part 338 Page 747 at 755 Para A-C per Onu JSC.

It is therefore a misconception of the law for the Appellants Counsel to contend that the reliefs claimed by the 1st and 2nd Respondents, bordering on infringement of their fundamental human rights, could only be brought under the Fundamental Rights (Enforcement Procedure) Rules and no other.

Unfortunately, the lower Court fell into the error of this fallacy and struck out some of the reliefs properly sought by the 1st and 2nd Respondents. As there is no cross appeal against this order of striking out, no more shall be said.

On the submissions made by Appellants Counsel with respect to pronouncements made by the lower Court of the orders of the magistrate, nowhere do I find, in the lower Court’s judgment, any castigation or review of any order made by the Magistrate. The censure by the lower Court was of the actions of the Appellants. The submissions of the Appellants Counsel on this issue are entirely unmeritorious. The lower Court, I accordingly hold, rightly assumed jurisdiction in this case. The 1st issue for determination is, in consequence, resolved against the Appellants.

The 2nd issue for determination
Whether the processes filed by the Respondent are fundamentally defective.
Appellants Counsel has argued that there was no valid amended Writ of Summons, Statement of Claim and other ancillary Court processes, as, after the trial Judge granted an application for amendment, the Respondents did not file any amended Writ of Summons, Statement of Claim and other processes as ordered by the Court.

Counsel to the 1st and 2nd Respondents contended, in response, that in line with the application of these Respondents for amendment and for deeming the amended pleadings as duly filed, the trial Judge so did, as reflected on Pages 88 and 102 of the Record of Proceedings. Courts he said, are more interested in substantial justice, rather than on form and technicalities.

Going by the record of appeal, I do agree with the Appellants Counsel that after the grant of some of the amendments sought by the 1st and 2nd Respondents and upholding the objections of Appellants by striking out some of the reliefs, the 1st and 2nd Respondents did not file an Amended Statement of Claim.

While it was a prayer of the Respondents that their proposed amended Statement of Claim be deemed as duly filed and served, this prayer was not pronounced upon by the Court, either by its grant or refusal. It is clear, however, that in spite of not so doing, the lower Court continued to rely on this process, howbeit omitting from its deliberations, pronouncements in respect of the reliefs struck out.

Thus even though I agree with the Appellants Counsel that no Amended Statement of Claim was filed consequent upon the amendments granted, there was no prejudice to the Appellants by this omission, as the lower Court, in acting upon the proposed Amended Statement of Claim, made no reference to the reliefs struck out and only deliberated on the reliefs allowed by it.

As has been held severally, it is not every error made by a trial Judge that will result in the reversal of the judgment, except such as occasion a miscarriage of justice or detract from the real issues in controversy. See Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 107 Para E-F per Peter-Odili JSC; Nguma v. A-G Imo State (2014) 7 NWLR Part 1405 Page 119 at 146- 147 Para A-B per M.D. Muhammad JSC.

No miscarriage of justice has been shown in this case, I hold. I accordingly again resolve this issue against the Appellants.

The 3rd issue for determination is:

Whether the Memorandum of Understanding/Payment Undertaking dated 24th October, 2014 executed by the 1st & 2nd Respondents was a nullity.

Learned Counsel to the Appellants has submitted that the lower Court did not properly and adequately assess and evaluate the evidence before it, before holding that the 1st and 2nd Respondents had proved their claim. They had failed to prove that the arrest of the 2nd Respondent was forceful, illegal and unlawful. The arrest of the 2nd Respondent was carried out pursuant to the complaint made by them in respect of the criminal offences alleged above. They cited the case of Fajemirokun v Commercial Bank (Credit Lyonnais) Nigeria Ltd (2009) 5 NWLR Part 1135 Page 588 on the duty of the citizen to make complaints to the Police, who will then take action thereon. This report does not render them culpable. Even if held to be unlawful, it was not proved how the Memorandum of Understanding/Payment Undertaking voluntarily made and executed by the 2nd Respondent in the presence and with the consent/endorsement of their Solicitor and Guarantor and the subsequent issue of postdated cheques could be said to have been issued under duress and undue influence. He accused the 1st and 2nd Respondents of contravening the equitable doctrine that he who seeks equity must do equity. He further accused the lower Court of acting on the testimony of Mr. Zibiri who was not a witness and whose evidence thus amounted to hearsay evidence.

Responding, learned Counsel to the Respondents, enumerating the facts leading to the institution of the action before the lower Court, submitted that the Appellants frustrated the contract, denying that the 1st and 2nd Respondents breached the terms of the Lease Agreement. The trial Judge was thus right in her evaluation of the evidence and in the entry of judgment in their favour.

On the question of the legality of Exhibit P9, the Memorandum of Understanding/Undertaking, and the illegality of the arrest of the 2nd Respondent, the lower Court held (Page 230), as follows:

On issue D which is the Plaintiffs issue 1, the facts of this case show clearly that exhibit P9 which is the memorandum of understanding was made while the 2nd Plaintiff was in the 3rd Defendant’s custody. The wordings of exhibit P9 referring to the 2nd Plaintiff as an accused person clearly demonstrates this. There is also the clear and uncontroverted evidence of the PW1 as well as the admission of the 2nd Defendant that exhibit P9 was made while the 2nd Plaintiff was in police custody. The 3rd defendant was also served but they did not file a response. They are deemed to have admitted this averment.

The 2nd plaintiff clearly described the circumstances under which he signed exhibit P9. It was far from voluntary. The 2nd plaintiff was told that he would only be granted bail if he signed exhibit P9. This makes exhibit P9 involuntary and clearly null and void. The same goes with exhibits P10 AC.

It is true that one of them was signed after the release of the 2nd Plaintiff but he had already undertaken to issue the cheques.

Exhibit P9, I find is contained at Pages 26 and 27 of the Record and is titled Memorandum of Understanding/Payment Undertaking. It was made between the 2nd Respondent, described in the agreement as Accused, on behalf of the 1st Respondent, and the 2nd Appellant on behalf of the 1st Appellant. The document detailed the history of the transaction between the parties, followed by the arrest of the 2nd Respondent and the initiation of criminal proceedings against him. It further stated that Counsel to the Accused has approached Counsel to the Complainant for settlement of the matter out of the Police and the Court. The document thereafter set out five undertakings of the Accused among which are that the Accused shall pay the sum of N12 Million in full and final settlement of the matter.

It mentioned the manner of payment and stated:

2. To the above end, the Accused has issued post-dated cheques to the Complainant with instruction to present same for clearing and payment on the dates thereon.

3. The Complainant shall, on receipt of last payment in September 2015 withdraw the criminal case in respect of this matter.

4. However in the event the Accused fails to ensure payment of any of the installment, the entire installments become due and the Complainant shall be at liberty to take any appropriate legal step in recovery of same, which shall include but not limited to Criminal Proceedings for issuance of dud and dishonoured cheque at the appropriate Court of law or tribunal; AND that shall be without prejudice to re-institution of the said criminal proceedings at the Chief Magistrate Court, Ibrahim Taiwo Road, Kaduna.

5. The Guarantor voluntarily guarantees the Accused in respect of this agreement and accepts liability and responsibility for breach of same by the accused and shall be liable in both criminal and civil action in respect of such default.

The depositions on oath of the 2nd Respondent state quite forcefully the involuntariness of Exhibit P9, that he was forced to make it while in police detention and was also made to issue the postdated cheques before he was granted bail.

He reiterated this under cross examination, at Pages 204-205 of the Record.

This fact was confirmed by the 2nd Appellant, who testified as DW1.

He admitted under cross examination at Page 210 of the Record: The 2nd Plaintiff was under arrest when we signed Exhibit P9. It was the Plaintiff’s lawyer that stood for him before he was released. The agreement was prepared in my barrister’s office before we signed.

It is clear from his admission above that Exhibit P9 was executed by the 2nd Respondent while he was in Police Custody. Such a document is definitely inadmissible as proof of the 2nd Respondent’s liability, and as rightly held by the trial Judge is a nullity. Any admission extracted from a party under duress, intimidation or threats, as applicable to confessions under Section 29(2) of the Evidence Law 2011, is inadmissible and cannot be used against the party, I hold. The lower Court was accordingly right to have so held. I again resolve the 3rd issue for determination against the Appellants.

The 4th issue for determination is:

Whether the lower Court was right to have entered judgment in favour of the 1st and 2nd Respondents.

The lower Court, in its conclusion held as follows:

On the whole, all the remaining claims of the Plaintiffs succeed and they are granted. The Counterclaim fails and is dismissed.

In granting damages for breach of contract, I have considered the circumstances of the said breach and the losses incurred by the Plaintiffs as per her evidence. I consider general damages in the sum of N2.5 Million to be reasonable and I so award against the 1st and 2nd Defendants.

To recap, the reliefs granted by the lower Court, following the striking out of the other reliefs sought, are the following:

a) A declaration that the relationship between the 1st plaintiff and the 1st defendant is purely contractual transaction, thus civil and not criminal.

f) General damages in the sum of 5 million Naira for the breach of the lease agreement, agony and trauma the 2nd plaintiff went through in the hands of the defendants on a purely civil transaction.

With regard to the 1st relief, which is for a declaration that the relationship between the parties is a contractual and civil transaction and not criminal, this is so, as rightly held by the lower Court. The transaction between them is as contained in the Lease Agreement, Exhibit P1, made on the 4th July 2012, between the 1st Appellant, described as Lessor and the 1st Respondent, described as the Lessee.

Exhibit P1 further stated that the premises were demised to the Respondents for a period of three years commencing from the 4th day of July 2012 at the rate of N14 Million Naira only, that is at quarterly rent of N3,500,000 only to be paid up front

It was also a term of the agreement that if the reserved rent was not paid for three months after becoming due and formally demanded, it shall be lawful for the Appellants to re-enter the premises or part thereof and thereupon the demise shall absolutely determine but without prejudice to the rights of the Lessor at any time thereafter to re-enter upon the said premises or part thereof and thereupon this demise shall absolutely determine but without prejudice to the rights of the Lessor in respect of any breach of covenant on the part of the Lessee herein contained.

It was further stated that Provided Further that either party shall be entitled to terminate the agreement by giving the other party three months notice in writing of such intention declaring that the said lease shall be determined.

The evidence of the 2nd Respondent is that he was evicted from the property in April 2013, after he had paid the total sum of N4.2 Million.

It is clear that the transaction between the parties, being a Lease Agreement, was a contractual agreement and thus civil, I hold.

There were no clauses for reversion to criminal action, as the Appellants did.

It has been settled by a long line of authorities that the Police are not debt or rent collection agencies, which is what the Appellants turned the 3rd Respondent to be in this case.

In the case of McLaren v Jennings (2003) 3 NWLR Part 808 Page 470 at 484 Para E-H, His Lordship Salami JCA (as he then was) on this subject, held:

I have scrutinized the provisions of the section (Section 4 of Police Act) and I am unable to see a provision providing for or empowering police to enforce contract or collect common debts.. 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.. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the Appellants a shield.

The Appellants however argue that the arrest was carried out pursuant to the complaint made by them with respect to the criminal offences alleged above. They have cited the case of Fajemirokun v Commercial Bank (Credit Lyonnais) Nigeria Ltd (2009) 5 NWLR Part 1135 Page 588 at 600 Para B-C where the Supreme Court, per Ogebe JSC held:

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. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.

The duty of the citizen is as amply stated by Ogebe JSC above. Where, however, the citizen goes beyond a mere report to the Police but proceeds to teleguide them and, under the coercive power of the Police to extract agreements and payments from the victim, the citizen has gone beyond mere reporting, to being the principal instigator, I hold.
If indeed the criminal charges for which the 2nd Respondent was purportedly arrested by warrant were genuine, why was it that, following his arrest and incarceration, he was not taken to the Magistrate Court but was released by the Police only after his execution of Exhibit P9 and some cheques?

It is clear that the sole purpose for arresting and detaining the 2nd Respondent was to coerce him into executing Exhibit P9 and to effect further payments on the Lease Agreement, a purely contractual and civil transaction. The report to the Police was thus malafide, for which they could not use the Police as a shield.

The 2nd relief was for a declaration that Exhibit P9 and the cheques issued, having been executed and issued while in Police custody were illegal, null and void, having been made under duress and undue influence. This, as rightly held by the lower Court, was so.

The 3rd relief sought that the 1st and 2nd Respondents were not indebted to the Appellants shall be treated under the final issue for determination.

The 4th relief is for general damages in the sum of N5Million for breach of the lease agreement and for the agony and trauma suffered by the 2nd Respondent in the hands of the Appellants for a purely civil transaction.

The lower Court, in awarding general damages against the Appellants, considered the actions of the Appellants in terminating the agreement contrary to contract and evicting the 1st and 2nd Respondents.

The Court noted that there was nowhere in Exhibit P18, the Record of Proceedings before the Magistrate Court, that that Court ordered the 1st and 2nd Respondents out of the hotel premises, thus casting a doubt, it held, on the evidence of DW1. This, it held, was buttressed by the fact that the case before the Magistrate Court was commenced on the 10th June 2013 vide Exhibits P6 and P7, while the eviction was carried out on the 23rd of April 2013 as clearly seen from Exhibits P8 which is the joint inspection carried out by the parties at the time the Plaintiffs were evicted from the hotel premises by the 1st and 2nd Defendants. The eviction was clearly unlawful and in breach of the agreement between the parties.

Referring further to Exhibit P1, the agreement between the parties, the Court held (Page 234 and 235):
From the above, the 1st and 2nd defendants were to wait until 3 months after the next instalment became due i.e. 9 months plus 3 months after its commencement before making a demand. It is after this that the defendants could rightly re-enter upon the premises.

Since in this case the agreement was entered into in July 2012 and the 1st instalment due by April 2013 the 1st and 2nd defendants ought to have waited until July 2013 before giving notice and entering into the premises.
By entering therein in April 2013 even after further payments of N700,000 had been made, the 1st and 2nd defendants acted in breach of the agreement between the parties.

The trial Judge thereupon held:

The Plaintiffs testified on the difficulties they went through as a result of the 1st and 2nd Defendants breach of contract e.g forcing them out of the premises, getting them arrested and extracting an agreement and cheques from them. Unjustifiably which under detention (sic) the Plaintiffs have made out a claim for an award in general damages for breach of contract.
On the whole all the remaining claims of the Plaintiffs succeed and they are granted. The Counterclaim fails and is dismissed.

In granting damages for breach of contract, I have considered the circumstances of the said breach and the losses incurred by the Plaintiffs as per the evidence. I consider general damages in the sum of N2.5 Million to be reasonable and I so award against the 1st and 2nd Defendants.

The trial Court, I hold, was right to have adjudged the Appellants liable for breach of the Lease Agreement and for the trauma and agony suffered by the 2nd Respondent.

The Lease Agreement, as pointed out in the judgment of the lower Court, was clear that payment was to be on a quarterly basis, namely every 9 months. By the Agreement, it is only after three months of default that the Appellants may re-enter the premises and determine the tenancy. The Appellants, rather than wait for the 12months allowed, re-entered the premises only after 9 months and some days and evicted the 1st Respondent. This act and the trauma and agony suffered by the 2nd Respondent at the hands of the Appellants, rendered the Appellants liable to damages.

Appellants Counsel, however complains that no evidence of the amount sought was presented. However, unlike special damages which must be pleaded specially and proved strictly, the award of general damages is determined by what is reasonable in the circumstances of the case. It arises from inference of law and need not be proved by evidence. It suffices once generally averred in the pleadings and are presumed by the law to be the direct and probable consequence of the act of the Defendant complained of. Unlike special damages, it is generally incapable of exact calculation. See Eneh v Ozor (2016) 16 NWLR Part 1538 page 219 at 238 Para G-H per Akaahs JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 192-193 Para H-A; (2014) All FWLR Part 734 Page 48 at 72 Para F-G per Ariwoola JSC.

An Appellate Court will not interfere with general damages awarded by the trial Court unless it is shown that such award was so low or too excessive, as to amount to an erroneous estimate, having regard to the evidence. See B.B. Apugo & Sons Ltd v Orthopaedic Hospitals Management Board (OHMB) (2016) 13 NWLR Part 1529 Page 206 at 257 Para B-C per Kekere-Ekun JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 185 Para F-H; (2015) All FWLR Part 734 Page 48 at 68 Para D per M.D. Muhammad JSC.

Taking the circumstances of this case into consideration and the egregious acts of the Appellants and their Counsel, it cannot be said that the general damages awarded to the 1st and 2nd Respondents was excessive. In consequence, I hold that the lower Court rightly entered judgment in favour of the 1st and 2nd Respondents. I again resolve the 4th issue for determination against the Appellants.

The 5th issue for determination is whether the lower Court was right to have dismissed the Counterclaim of the Appellants.
Learned Counsel to the Appellants has argued that they were entitled to their Counterclaim, as parties are bound by agreements freely entered into by them. The initial contract between the parties was overtaken by the Memorandum of Understanding. The Lease Agreement and subsequent taking over of the hotel by the Appellants vide a Writ of Possession are no longer an issue, having been overtaken by the Memorandum of Understanding.

Learned Counsel to the 1st and 2nd Respondents, citing the case of Balogun v Yusuf (2010) 9 NWLR Part 1200 Page 515 at 537 Para H-G submitted that a counterclaim constitutes a separate, independent and distinct action, where the counterclaimant proves his claim and accordingly bears a burden to prove same. Also citing the case of Aderounmu v Olowu (2000) 2 SCNJ Page 180 at 192-193, he submitted that where issues determined in the main claim are sufficient to dispose of the counterclaim, the trial Court is not expected to consider the same questions separately in relation to the counterclaim.

He accused the Appellants of failing to prove their counterclaim, pointing to the incongruity of the Memorandum of Understanding, as stating that it was for arrears of rent, yet the Appellants had forcefully taken over the property. Exhibit P1, he contended, referring to the 2nd Respondent as an accused person, was indicative of the fact that the same was made under the intimidation of the criminal complaint against him in the Chief Magistrate Court. A community reading of the Lease Agreement and Memorandum of Understanding make it clear that there is no justification for the payment of another sum of N12 Million, when the entire contract was for N14 Million and the Appellants had been paid N3.5 Million plus N700,000, yet the hotel was forcefully taken over. Exhibit P9, the Memorandum of Understanding signed, under threat of a bench warrant, should be declared illegally obtained, null and void.

The lower Court, in dismissing the Counterclaim held:

On whether the plaintiffs are indebted to the 1st and 2nd defendants which is a combination of prayer and the counter claim, I have already held exhibit P9 the basis of that counterclaim to be involuntary illegal and unenforceable. The 2nd defendant could neither explain nor justify the amount in exhibit P9.

Prior to this decision, the lower Court evaluated the evidence of the 2nd Appellant/Counterclaimant, observing some incongruities in his evidence.

The evidence of DW1 was that the interpretation of the phrase for payment of N14Million for a term of three years commencing the 4th July 2012 at a quarterly rent of N3.5 Million meant that N3.5 Million was to be paid every three months.

The lower Court found this account, being the basis of their Counterclaim for N12Million incredulous.
It held: .evidence before this Court that parties entered into a contract worth N14m for a period of 3 years (sic). It was very clear that the money was to be paid in quarterly instalments of N3.5m. This word quarterly cannot be construed to mean every 3 months as this will amount to a total of N14m per year i.e. N42m. This is not the intention of the parties to exhibit P1. In fact the DW1 clearly stated that the total amount for the 3 years was N14m. When asked how N3.5m every 3 month for 3 years could amount to N14m, DW1 could not answer. In fact he hesitated and evaded the question. He finally stated that all he knew was that the payments were to be every three months.

This is not reflected in exhibit P1 and it will amount to importing verbal additions to the clear provisions of exhibit P1 for this Court to read the payments of N3.5m to be every 3 months of the 3 year duration of the contract. This would mean increasing (sic) 2nd plaintiff while in the custody of the 3rd defendant to sign exhibit P9 and issue exhibit P10 AC are all acts of breach of the contract between the parties i.e. exhibit P1.

The basis for Exhibit P1 is stated in Paragraphs C-E of the recital, as follows:
WHEREAS:
C. The Accused was in default of the said terms and conditions of the Lease

Agreement and has been in arrears of payment of rent up to the tune of N13,300,000.00 before the Complainant took over the hotel in October 2013 vide Court’s Warrant for Possession.

D. The Complainant meanwhile has instituted criminal proceedings against the Accused and his company and staff in Case No. KMD/138/2013 which case is pending before Chief Magistrate Court No. 1 Ibrahim Taiwo Road, Kaduna which referred same to State C.I.D. for investigation and report.

E. The Accused was on the 22nd day of October 2014 arrested in Lagos State and brought to Kaduna State for interrogation and investigation but Counsel to the Accused has approached Counsel to the Complainant for settlement of the matter out of Police and Court.

NOW WITNESSETH AND IT IS HEREBY AGREED AS FOLLOWS:

1. The Accused shall pay to the Complainant a total sum of N12 Million for full and final settlement of the matter, in the following terms and manner:

a. The Accused shall pay N4,000,000.00 (Four Million Naira) to the Complainant on or before the 20th of January, 2015.

b. The Accused shall pay 2nd installment of N4,000,000.00 (Four Million Naira) on or before the 20th of May, 2015.

c. The Accused shall pay 3rd installment of N4,000,000.00 (Four Million Naira) on or before the 20th of September, 2015.

2. To the above end, the Accused has issued postdated cheques to the Complainant with instructions to present same for clearing and payment on the dates thereon.

The question the lower Court asked and which I also do, is how can the sum of N12 Million be due when by the admission of DW1, the total sum of N4.2 Million had been paid to it, and when by his admission under cross-examination, he re-possessed the hotel on 28th April 2013?

By simple arithmetic, if N14 Million is the rent for three years, the rent per annum is N4.6 Million and the rent per month, N388,888.88 (Three Hundred and Eighty-Eight Thousand Eight Hundred and Eighty-Eight Naira Eighty Eight Kobo). If the tenancy commenced on July 4th 2012 and the 1st Respondent was evicted on 28th April 2013, he had only spent nine and a half months in the property. The rent payable should thus have been N3.694,444.44 (Three Million Six Hundred and Ninety Four Thousand, Four Hundred and Forty Four Naira, Forty Four Kobo).

In effect, the 1st and 2nd Respondents, having paid N4.2 Million had overpaid the Appellants for their period of occupation of the premises.

It is thus an amazement and an attempt at evil enrichment for the Appellants to attempt by force and intimidation to seek to extract the totally fraudulent sum of N12 Million from the 2nd Respondent when they are the actual party owing the 2nd Respondent. The wonder is how a legal practitioner licensed to practice law in this country would lend himself to such a scheme.

Not only have the Appellants failed to prove their Counterclaim, this Court, having held under issue No. 3 that Exhibit P9, upon which the Counterclaim of the Appellants rested, is a nullity, it follows that the Counterclaim of the Appellants failed and was rightfully dismissed by the lower Court.

I yet again resolve this issue for determination against the Appellants.

Having resolved all issues against the Appellants, this appeal fails in its entirety and is dismissed. The judgment of Balogun J of the Kaduna State High Court delivered on the 17th day of November 2015 is affirmed.

Costs of N100,000 are awarded against the Appellants.

OBIETONBARA O. DANIELKALIO, J.C.A.: I have read in draft form, the judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. I agree with my lord that the appeal has no merit. I too dismiss it. The judgment of the lower Court is hereby affirmed. I abide by the costs awarded against the Appellant.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the privilege of reading in advance the lead judgment, delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I agree with her that this appeal is utterly devoid of merit. I hereby dismiss it and affirm the judgment of the lower Court delivered by Balogun, J on 17th November, 2015. I abide by my Lord’s order as to costs.

Appearances:

V.A.B. Ewuzie with him, C. E. Okonkwo (Mrs.) For Appellant(s)

M.B. Yusuf with him, Yazid Abdussalam and Z. Yusuf for 1st and 2nd Respondents.

3rd Respondent not represented For Respondent(s)