DANSHETU v. NPF & ANOR
(2022)LCN/16370(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, May 23, 2022
CA/ABJ/CV/560/2021
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
MR. SATI DANSHETU APPELANT(S)
And
1. NIGERIA POLICE FORCE 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO:
DAMAGES NATURALLY FLOW FROM THE VIOLATION OF THE RIGHT ALLEGED TO HAVE BEEN BREACHED
Damages naturally flow from the violation of the right alleged to have been breached. It follows invariably that once it is established that the applicant’s right has been violated, compensatory or as the case may be, exemplary damages would be attracted and awarded. The ground for this was set by Section 35(6) of the 1999 Constitution as amended. The dynamics and dimension of this right was explained in the case of William & Anor v. Usen & Ors.(2018) LPELR – 46163 CA. In that case, this Court, per Ogbuinya, JCA, held as follows:
“To begin with, the respondents erected their case on the provision of Section 35(1) of the Constitution, as amended: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…” The specific subsection which comes in handy on the consideration of the issue is Subsection (6) of Section 35 of the Constitution, as amended. Since it is the cynosure of the issue, it is imperative to pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus: (6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”, STEPHEN JONAH ADAH, J.C.A.
THE COURT IS EMPOWERED TO AWARD DAMAGES IN COMMENSURATE MEASURE TO THE BREACH
See also the case of Fortis Microfinance Bank Ltd Plc v. Ikechukwu Amaefula & Ors (2021) LPELR – 527 (CA), where this Court held thus:
“the Court is empowered to award damages in commensurate measure to the breach. The 1st Respondent having proved a breach, damages is the natural flow from the breach. The power of the Court to award damages whether claimed or not is derived from the Constitution. See Section 35(6) of the 1999 Constitution. Furthermore, the principle that a Court lacks the jurisdiction to award what was not claimed for is inapplicable to the specialized proceedings under the Fundamental Rights Proceedings with particular reference to damages flowing from a breach of Fundamental Rights of a citizen.”
What in all cases determines the quantum of the damages is majorly the level of the breach of the right of the appellant. Also, material to that consideration is the circumstances of the breach. In the instant case, the applicant took out an Originating Summons to enforce his fundamental right. STEPHEN JONAH ADAH, J.C.A.
THE SETTLED LAW ON THE ATTORNEY GENERAL OF THE FEDERATION BEING SUED AS A DEFENDANT IN ALL CIVIL MATTERS
It is settled law that the Attorney General of the Federation can be sued as a defendant in all civil matters in which claim can properly be made against the Federal Government or any of its authorized agencies arising from any act or omission complained of. See the case of Attorney General of Kano State v. Attorney General of the Federation (2007) 6 NWLR (Pt. 1029) 164. There is therefore, nothing that is diminishing the high potency of the claim of the appellant as regards breach of his fundamental right under the Constitution. The suing of the 2nd respondent therefore, is within the normal range of suing the Federal Government and her agencies such as the 1st respondent in this case. In such a situation, such as this, the 2nd respondent cannot be said to be a nominal party in ordinary parlance. STEPHEN JONAH ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja Division, in suit no. FHC/ABJ/CS/1144/2020, delivered on the 14th day of December, 2020, Coram: A. I. Chikere J., wherein the trial Court awarded the sum of Ten Million Naira (N10,000.00) as damages for the breach of the Appellant’s fundamental rights to dignity of the Human Person, Liberty, Movement, Freedom of thought, expression, assembly and association and personal development.
The appellant as applicant before the trial Court instituted this action under Fundamental Right Enforcement Procedure and claimed against the respondents all the declaratory reliefs as per the Originating Motion, thus:
1. A Declaration that the act of shooting the Applicant with live arms by the 1st Respondent is reckless, cruel, unlawful and a flagrant violation of the Applicant’s Fundamental Rights to Dignity of the Human person, Liberty and Freedom of Movement as guaranteed by Section 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5, 6 and 12 of the African Charter on Human and Peoples’ Rights.
2. A Declaration that the acts of shooting the Applicant with live arms and breaking his bone and permanently incapacitating and disabling him and limiting his opportunities and chances in life constitutes an infringement of the Applicant’s rights to freedom of thought, expression, assembly and association and personal development guaranteed by Section 38, 39 and 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Articles 22 and 24 of the African Charter on Human and Peoples’ Rights.
3. The sum N1,000,000,000 (One Billion Naira) as exemplary, aggravated, punitive and general damages against the Respondents jointly and severally for the unwarranted infringement of the Applicant’s fundamental rights and consequential cost, stress and trauma occasioned the Applicant, his family and dependents.
4. And for such order or other orders as this Honourable Court may deem fit to make in the circumstances.
Upon the service of the Originating Motion on the respondents, no processes were filed by the respondents in defense of the application for the enforcement of the Fundamental Rights of the appellant/applicant. The trial Court went into full trial and the suit was heard on the 1st December, 2020.In the course of the trial, the appellant/applicant in a bid to prove his case tendered Exhibits A, B, C, D, E and F. In a considered judgment delivered on the 14th day of December, 2020, the trial Court awarded the sum of N10,000,000. 00 (Ten Million Naira) only as damages against the 1st respondent only and further held that the 2nd respondent was only joined as a nominal party and that no allegations were made against the 2nd respondent.
Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court vide a Two Ground Notice of Appeal filed on the 15th March, 2021. The Record of Appeal was transmitted to this Court on the 23rd day of August, 2021.
In line with the rules of this Court, parties filed and exchanged their respective Briefs of Argument.
Counsel for the appellant distilled two issues in the Appellant’s Brief of Argument dated and filed on the 6th day of October, 2021, thus:
1. Whether, by virtue of the peculiar facts and circumstances of this case, the Court ought not to have granted the sum of One Billion Naira or a far higher sum than Ten Million Naira as damages. (Ground 1)
2. Whether the trial Court was right in holding that the 2nd Respondent was joined as a nominal party in spite of the un-refuted allegations leveled against him, his office, the Federal Government and the FCTA Ministerial Enforcement Taskforce on Covid-19 Restriction. (Ground 2)
In response, counsel for the 2nd respondent in his Brief of Argument filed on 6th February, 2021 but deemed properly filed and served on 7th December, 2021, adopted the second issue distilled by appellant with a slight modification to it, and refused to join issues on issue one as it affects only the 1st respondent. The 1st respondent did not file any brief in this appeal.
I shall adopt the issues as submitted by the appellant in considering this appeal. I now start with issue one.
Issue One:
This issue is – Whether, by virtue of the peculiar facts and circumstances of this case, the Court ought not to have granted the sum of One Billion Naira or a far higher sum than Ten Million Naira as damages.
Learned counsel for the appellant submitted that anappellate Court can review the award of damages if a trial Court applies a wrong principle in the award of damages either by taking into account irrelevant factors or leaving out relevant factors or where the amount awarded is either inordinately low or inordinately high. Counsel relied on the cases of Stirling Ltd v. Yahaya (2005) 11 M.J.S.C 137, 168-169, Paras. C-A; Sonibare v. Soleye (2009) 4 M.J.S.C (Pt. II) 135, 144, Paras. B-E; Odiba v. Azege (1998) 9 NWLR (Pt. 556) 370; Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654 at 661; Eliochin (Nig.) Ltd v. Mbadiwe(1986) 1 NWLR (Pt. 14) 47 SC; Onagoruwa v. IGP (1991) 5 NWLR (Pt. 193) 593; Anambra State v. Ekwenem (2009) 7 M.J.S.C. (Pt. 1) 118, 149, Paras. A- B; C & C v. Okhai (2004) 2 M.J.S.C. 134, 155, F-G; Fair v. London & North Western Rail co. (1969) 21 L.T. 326; Strabag Construction (Nig.) Ltd v. Ogarekpe(1991) 1 NWLR (Pt. 170) 733; Alhaji Mohammed Jodi v. Alfa Saka Salami (2009) All FWLR (Pt. 458) 385 at 416, Para F.
Learned counsel for the appellant argued that in the recent case of Arocom Global Investment Limited v. United Parcel Services Limited (2021) LPELR-52891 (CA), the Courtheld that the appellant had a duty to respond to the respondent’s Letter of Demand if it had reason to dispute the content; the Appellant’s refusal to respond to the letter amounted to an admission of the sum stated in the letter. Counsel further relied on the cases of Trade Bank v. Chami (2003) 13 NWLR (Pt. 836) 158; Nagebu& Co. Nig. Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42 at 81; Karimat Global Trade Links Ltd & Anor v. Unity Bank Plc (2014) LPELR-23986 (CA); Intime Connection Ltd v. Ichie (2009) LPELR-8772 at Page 20, Paras. D-G.
This claim is for damages for breach of fundamental right. It is well settled that the purpose of awarding damages in a fundamental right claim is to compensate a person for the injury suffered by him. Damages naturally flow from the violation of the right alleged to have been breached. It follows invariably that once it is established that the applicant’s right has been violated, compensatory or as the case may be, exemplary damages would be attracted and awarded. The ground for this was set by Section 35(6) of the 1999 Constitution as amended. The dynamics and dimension of this right was explained in thecase of William & Anor v. Usen&Ors.(2018) LPELR – 46163 CA. In that case, this Court, per Ogbuinya, JCA, held as follows:
“To begin with, the respondents erected their case on the provision of Section 35(1) of the Constitution, as amended: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…” The specific subsection which comes in handy on the consideration of the issue is Subsection (6) of Section 35 of the Constitution, as amended. Since it is the cynosure of the issue, it is imperative to pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus: (6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.” The provision of Section 35(1) of the Constitution, as amended, has fallen for interpretation by the Courts. It is now firmly established by the case-law authorities, on the footing of the prescription of Section 35(6) (supra), that a party who establishes unjust deprivation of his personal liberty is entitled, ex debito justitiae to compensation in the form of damages. See Odogu v. A.-G. Fed. (supra); Jim-Jaja v. C.O.P., Rivers State (supra); F.B.N. Plc v. A.-G., Fed (2018) 7 NWLR (Pt. 1617) 121. The word “entitled”, as encapsulated in Section 35(6) (supra), denotes “to give (a person or thing) a title, right or claim to something; furnish with grounds for laying claim.” See F.B.N. Plc. v. A.-G. Fed (supra) at 149, per Augie, JSC. Compensation is coterminous with damages which signify: “the pecuniary compensation which the law award to a person for the injury he has sustained by reason of the act or default of another, whether that act or default is a breach of contract or a tort” of “the recompense given by process of law to a person for the wrong that another has done him.” See F.B.N. Plc v. A.-G. Fed. (supra) at 174, per Okoro, JSC.”
See also the case of Fortis Microfinance Bank Ltd Plc v. Ikechukwu Amaefula & Ors (2021) LPELR – 527 (CA), where this Court held thus:
“the Court is empowered to award damages in commensurate measure to the breach. The 1st Respondent having proved a breach, damages is the natural flow from the breach. The power of the Court to award damages whether claimed or not is derived from the Constitution. See Section 35(6) of the 1999 Constitution. Furthermore, the principle that a Court lacks the jurisdiction to award what was not claimed for is inapplicable to the specialized proceedings under the Fundamental Rights Proceedings with particular reference to damages flowing from a breach of Fundamental Rights of a citizen.”
What in all cases determines the quantum of the damages is majorly the level of the breach of the right of the appellant. Also, material to that consideration is the circumstances of the breach. In the instant case, the applicant took out an Originating Summons to enforce his fundamental right. The affidavit in support as deposed to by one John Shevi, for the appellant reads materially in paragraphs 2 to 11, as follows:
2. On Sunday the 5th day of April, 2020, the applicant went out to buy food from a local food outlet operated by one Mrs. Beauty Friday just a stone’s throw from where the applicant lives, when suddenly the area was overwhelmed by men and officers of the 1st Respondent led by the Divisional Police Officer (DPO) of Kuje Divisional Office, discharging live ammunitions sporadically and in the process shot the applicant and left without attending to him.
3. The applicant was standing beside Mrs. Beauty Friday, the owner of the said local food outlet, when the bullet caught him smashing him to the ground in a somewhat horror movie scene.
4. Despite seeing the applicant shot by their gun and writhing in pain, in the pool of his blood, the men and officers of the 1st Respondent, had turned their backs on him and walked away. It took the outcry of the villagers and passers-by for the Divisional Police Officer of Kuje to take the applicant to Kuje General Hospital on that 5th April, 2020 from where the applicant was subsequently referred to the National Hospital Abuja for expert management.
5. The applicant was transferred to the National Hospital Abuja in the early hours of 6th day of April, 2020. Medical Reports issued by Kuje General Hospital and National Hospital Abuja in respect of the applicant are hereby attached as Exhibit A and B respectively.
6. The applicant was at the National Hospital Abuja, where he was dumped without any financial commitment whatsoever from the 1st Respondent, from that 61412020 to 11/4/2020 with the bullet still lodged in him causing him severe agony completely subduing him to a point he could only mutter words that could only be heard by someone at very close range.
7. The other members of the applicant’s family and I had to rally round in panic and confusion to raise funds which did not come due to the covid-19 pandemic lockdown. We eventually raised some money on 11/4/2020 with which we took the applicant to Molly Medical Centre at Mararaba in Nasarawa State where we could afford.
8. The bullet was eventually extracted at Molly Medical Centre where the applicant was admitted and managed for about a month. The Medical Centre had suggested that the applicant be taken to an orthopedic hospital but since the other members of the applicant’s family and I could not afford it or any further cost of managing the applicant at the Medical Centre, he was discharged. The medical report issued by Molly Medical Centre is hereby attached and marked as Exhibit C.
9. We are still indebted to the Medical Centre for accumulated medical bills for the treatment of the applicant. The Medical Centre initially did not want to release the medical report in lien for the outstanding bills but for the intervention of the applicant’s lawyer.
10. We have equally not been able to afford the drugs that were prescribed for the applicant who has incessantly fallen sick as a result of the bullet injury and has to be closely monitored and supported by the people as he is now incapacitated.
11. The applicant was discharged on clutches and incessantly feels pain and often relapses into depression as he has completely lost his joy. Since his discharge the medical centre, he has behaved in such a manner typical of depression, especially with his inability to secure appropriate medical services for his condition causing his family members to perpetually remain at his service to forestall any unpleasant experiences.
The Respondents did not enter the case nor join issues with the appellant at the trial Court. The trial Court in its judgment at pages 54 to 57 found as follows:
“Despite service on the Defendants, they failed, neglected, refused to state their own side of the case or have counsel on theirbehalf to state their own side of the case. It is trite law that a party who is aware of pendency of suit against, but chooses not to respond, cannot complain of lack of fair hearing neither will the Court wait indefinitely for an unwilling party to attend Court….
The Respondents by not stating their side of the case are running away from the truth of the matter and have themselves to blame. The Court has created an atmosphere/environment for the hearing of case but it is not Court’s duty to make sure Respondents take advantage of same by involving themselves in the hearing of the case. It is also trite law that where there is no Counter Affidavit or denial to an affidavit evidence same is admitted as truth.”
Since the 1st respondent did not testify to counter the allegations of the appellant, she has to take up the liability of the mischief done to the appellant by her staff or employee. Issue one is therefore, resolved in favour of the appellant.
Issue Two:
This issue is – Whether the trial Court was right in holding that the 2nd Respondent was joined as a nominal party in spite of the un-refuted allegations leveled against him, hisoffice, the Federal Government and the FCTA Ministerial Enforcement Taskforce on Covid-19 Restriction.
Learned counsel for the appellant submitted that the 2nd respondent, who stands in legal capacity representing the Federal Government and the FCTA Ministerial Enforcement Taskforce on Covid-19 Restriction, should be jointly liable with the 1st respondent. It is obvious from the foregoing that the suit of the appellant at the trial Court did not only complain about the shooting but also the root cause of same being the policy of law enforcement and particularly the covid-19 lockdown guidelines and policy of the Federal Government which lies squarely at the desk of the 2nd Respondent. This position was not challenged at the trial Court and should be deemed admitted. It was not up to the trial Court to make a case for a party who had admitted such by failure to respond to allegations against him because sentiment has no place in judicial deliberations. Counsel relied on the cases of PML (Nig.) Ltd v. FRN (2017) LPELR-43480 (SC), P.59, Para D, FCDA Staff Multi-Purpose (Coop) Society &Ors v. Samachi& Anor (2018) LPELR-44380 (CA), Ohwovoriole v. FRN (2003) FWLR (Pt. 141) 2019, Oniah v. onyia (1989) NWLR (Pt. 99) 514, Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654 at 658 and Abdullahi v. Raji (1998) 1 NWLR (Pt. 534) 481 at 392, Para D-F. Counsel further submitted that it is apposite to state at this juncture that the standard of proof in civil cases is that on preponderance of evidence and that failure to reply facts in affidavit by way of counter-affidavit is admission of the facts therein contained. Counsel relied on the case of Ugochukwu v. Nwoke & Anor (2010) LPELR-11616 (CA), Page 23.
In response, learned counsel for the 2nd respondent argued that the 1st respondent is a separate legal entity and may be sued in its name, whilst the Attorney General of the Federation can only be made liable in matters that directly involve the state or any of its agencies. The complaint of the appellant before the trial Court is directly against the 1st respondent. There is nowhere it was established in evidence that the 2nd respondent directed the Officers of the 1st respondent to shoot or inflict bodily harm on the Appellant. Counsel relied on the cases of A.G. Kano State v. A.G. Federation (2007)6 MJSC P8, A.G Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR Pt. 1248 SC 31 at Paras C-E.
Learned counsel for the appellant in his Reply Brief argued that the 2nd respondent, who was duly represented by counsel at the trial Court, having failed to respond to allegations against him (either directly or those against the president or the task force on Covid-19 Restriction) had approbated on that issue and cannot reprobate herein on the same issue. Counsel relied on the cases of Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 612, G-H; Ezenwa v. K.S.H.M.B. (2011) 9 NWLR (Pt. 1251) 89 at 118 Paras B-C; Saul Raccah v. Standard Company of Nigeria Ltd (1922) 4 NLR 48 Ogualaji v. A.G. Rivers State & Anor (1997) 5 SCNJ 240 at 248; Joe Iga v. Amakiri (1976) 11 SC 1 at 12-13; Onamade & Anor v. African Continental Bank Ltd (1997) 1 SCNJ 65 at 83; Sambo v. Bello & Ors (2017) LPELR-43022 (CA); A.G. Kano State v. A.G. Federation (2007) 6 NWLR (Pt. 1029) 164 at 192; A.G Anambra State v. A.G. Federation (2007) All FWLR (Pt. 379) 1218 at 1249-1250; Paras. F-B; Ayemwenre v. Evbuomwan (2019) LPELR-47213 (CA) Pp. 49-50.
On this issue, the finding of the trial Court that the 2nd respondent is a nominal party was argued out by the parties. The 2nd respondent who is the Attorney General of the Federation is a creation of Section 150 of the 1999 Constitution of the Federal Republic of Nigeria. He is the Chief Law Officer of the Federation and a Minister of the Government of the Federation. It is settled law that the Attorney General of the Federation can be sued as a defendant in all civil matters in which claim can properly be made against the Federal Government or any of its authorized agencies arising from any act or omission complained of. See the case of Attorney General of Kano State v. Attorney General of the Federation (2007) 6 NWLR (Pt. 1029) 164. There is therefore, nothing that is diminishing the high potency of the claim of the appellant as regards breach of his fundamental right under the Constitution. The suing of the 2nd respondent therefore, is within the normal range of suing the Federal Government and her agencies such as the 1st respondent in this case. In such a situation, such as this, the 2nd respondent cannot be said to be a nominal party in ordinary parlance. In the case of Agamore Energy Ltd v. Essar Exploration and Production Ltd & ors., (2021) LPELR – 54843 (CA), this Court defined the word “Nominal”, Nominal Party” as follows:
“The word ‘nominal’ is defined by the Oxford Advanced Learner’s Dictionary as something in name only and not in reality. The Black’s Law Dictionary Ninth Edition, defined nominal party as: ‘A party to an action who has no control over it and no financial interest in its outcome; esp., a party who has some immaterial interest in the subject matter of a lawsuit and who will not be affected by any judgment, but who is nonetheless joined in the lawsuit to avoid procedural defects.”
From this definition and having regards to the facts and circumstances of this case, the 2nd respondent cannot be seen as a nominal party. The issues at stake is the breach of the fundamental right of a citizen of the Federal Republic of Nigeria by the Nigeria Police. A breach of any of the provision of Chapter IV of the Constitution by any agency of Federal Government is such a serious breach that should be at the door steps of the 2nd respondent Attorney General of the Federation. Issue two is therefore, resolved in favour of the appellant.
From the foregoing therefore, we are of the view that this appeal has merit. The appeal is partly allowed. The damages awarded by the trial Court of N10 Million is grossly inadequate and cannot be said to be commensurate to the damages done through the recklessness of the officers of the 1st respondent. This Court has the power and authority to review the Quantum of damages awarded by the trial Court. We take into consideration the level of breach to the body and person of the appellant. A sum of N10 Million awarded by the lower Court is set aside and a sum of N30 Million is awarded.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Stephen Jonah Adah, JCA, and I am in total agreement with the reasoning and conclusion reached therein.
I also allow the appeal in part and abide by the consequential orders made in the lead judgment.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I was privilege to read in draft the lead judgment of my learned brother, STEPHEN JONAHADAH, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal is meritorious and it is allowed.
I abide by the consequential orders made in the lead judgment and I adopt them as mine.
Appearances:
David I. Ajaba Esq., with him Victor Shina Akinlabi Esq. For Appellant(s)
Suleiman Jibrin (SC Federal Ministry of Justice) with him Hassan Ndahi (SC Federal Ministry of Justice), for the 2nd Respondent. For Respondent(s)
