DIAMOND BANK PLC & ANOR v. OGBONNA LEONARD IRECHUKWU & ORS
(2018)LCN/12410(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/PH/175/2015
RATIO
CONTRACT : THE DOCTRINE OF ‘LIEN’
“Nowhere was it stated that the truck shall be a lien on the bank pending repayment of the loan by the 1st Respondent. It is only the original documents upon purchase that are to be in custody of the 1st Appellant as a security or guarantee pending when the loan is liquidated. Lien has been defined to mean a charge for a payment of debt or duty upon either real or personal property. It is a claim or charge on property for payment of some debt it is a right or claim against some interest in property created by law as an incident of contract. It is a right to enforce charge upon property of another for payment or satisfaction of debt. See FIRST BANK OF NIGERIA PLC V. SONGONUGA (2007) 3 NWLR {Pt. 1021} 230 at 266 – 267; UGO V. OBIEKWE (1989) 1 NWLR {Pt. 99} 566 at 590. In JAGAL PHARMALIMITED V. ALH. SALISU HUSSAINI & ANOR (2013) LPELR 21871 (CA) this Court while defining lien held per ABOKI JCA on page 28 paragraphs B & C thus: –
“The word lien has been judicially defined thus: ‘A lien is a right to retain that which is in one’s possession belonging to another till certain demands of the person in possession are satisfied.’See Afrotec Tech Service (Nig) Ltd. V. MIA & SONS Ltd. (2000) 15 NWLR {Pt. 692} page 730 at 786″.” PER BITRUS GYARAZAMA SANGA, J.C.A.
CONTRACT: ACTION FOR THE BREACH OF CONTRACT
“In KRAUS THOMPSON ORGANISATION LIMITED V. UNIVERSITY OF CALABAR (2004) LPELR 1715 (SC) the Supreme Court held, per MUSDAPHER JSC (as he then was) on pages 19 & 20 paragraphs E & B. that: –
“An action upon a breach of contract may be commenced and determined in anyone of the following three places; namely: (a) where the contract was made; or (b) where the contract ought to have been performed; or (c) where the defendant is entitled to take advantage of any of the alternatives and rely on it to choose the venue convenient for him.” The action for breach of a contract is normally instituted before a Court of competent jurisdiction as I stated above and not by engaging the police to recover a loan which was secured by a contract between the parties.” PER BITRUS GYARAZAMA SANGA, J.C.A.
DAMAGES: EXEMPLARY DAMAGES
“The law is trite that exemplary damages are not awarded as a matter of course. ‘In FIRST BANK OF NIGERIA PLC & ORS V. A-G OF THE FEDERATION & ORS (2013) LPELR 20152 (CA) this Court held per AKOMOLAFE-WILSON JCA on page 7 paragraph F as follows: – ‘For a party to be entitled to exemplary damages, it is his duty to prove that the action of respondent is outrageously reprehensible.'” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. DIAMOND BANK PLC
2. MRS. BENEDICTA ESENWA-OKOLO Appellant(s)
AND
1. OGBONNA LEONARD
IRECHUKWU
2. COMMISSIONER OF POLICE, RIVERS STATE.
3. S. P. LUKA OTTA Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This appeal is from the judgment of the Federal High Court Port Harcourt Judicial Division H. A. NGANJIWA J., presiding in Suit No. FHC/PH/CS/476/2010 delivered on 13th December, 2013. The 1st Respondent as Applicant commenced the suit via an Originating Motion on Notice dated and filed on 15th September, 2010 pursuant to Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 wherein he sued the Appellants seeking for the following reliefs: –
a) A DECLARATION that the detention of the application at Refinery Police Station, Life Camp Eleme, Rivers State from the 26th April, 2010 to 30th April, 2010 by the 3rd and 4th Respondents at the instance and instigation of the 1st and 2nd Respondents, is a gross violation of the applicant’s right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999.
b) AN ORDER, compelling the respondents to tender an unreserved public apology to the applicant, which apology shall be published in the front page of 3 national daily newspapers.
c) AN ORDER, restraining the respondents by themselves or through their agents howsoever from further arrest or detention of the applicant in respect of any matter relating to or connected with the loan transaction between the applicant and the 1st respondent.
d) AN ORDER, compelling the respondents to release the applicant’s Mac truck with registration number, XA 748 KMR now in the custody of the 4th respondent at Refinery Police Station, Life Camp.
e) THE SUM OF N50,000,000.00 exemplary damages against the respondents for the gross violation of the applicant’s right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999.
GROUNDS UPON WHICH RELIEFS ARE SOUGHT:
The applicant seeks relief on the ground that the detention of the applicant at Refinery Police Station, Life Camp Eleme Rivers State from the 26th April, 2010 to the 30th April, 2010 by the 4th and 5th respondents at the instance and instigation of the 1st and 2nd respondents, is a gross violation of the applicant’s right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999. (pages 3- 4 of the record of appeal).
In support of the Application is a 17 paragraphs affidavit deposed to by the Appellant; attached to which is a copy of the letter of ‘OFFER OF CREDIT FACILITY’ dated 19/2/2009 approving to the applicant his request for a loan of N1,900,000:00. The letter is marked as Exhibit ‘A’. A written address also accompanied the application. (pages 5 – 14 of the record of appeal). The 1st and 2nd Respondents filed a counter affidavit containing 6 paragraphs attached to which is a copy of a document titled: ‘TRANSFER OF OWNERSHIP OF VEHICLE’ dated 6/3/2009 also marked as Exhibit ‘A’ and a written address dated 15/12/2010. (pages 15 – 21 of the record of appeal).
The 3rd and 4th Respondents also filed a 15 paragraphs counter affidavit deposed to by one Sgt. Bernard Osuafor attached to which are (a) Copy of Extract from Crime Diary and (b) Copy of a document headed: ‘RECOVERY OF TRUCK FOR LOAN REPAYMENT’ dated 26/04/2010. A written address also accompanied the counter affidavit. (pages 22 – 32 of the record of appeal).
The Applicant filed a 14 paragraphs Further Affidavit dated 02/02/2011. (pages 40 – 42 of the records). He also filed a written address on reply on Points of Law dated 20/07/2011 (pages 55 – 58 of the record of appeal). Proceedings of the lower Court is on pages 81 – 109 of the Records.
Judgment was delivered by the learned trial Judge on 13/12/2013 (pages 113 – 127 of the record of appeal). After reviewing the affidavit evidence and other processes filed before him the learned trial Judge held thus: –
“In all, I find that the arrest and detention of the Applicant by the 3rd and 4th Respondents was unexcusable (sic). The Applicant’s detention is neither necessary nor incidental, it clearly lacked resemblance of legal justification as such the arrest and detention must be condemned in its entirely. In addition, I hold the view that the 1st and 2nd Respondents brought the complaint that led to the arrest and detention of the Applicant in bad faith.”
In conclusion, I find merit in the application and I grant the application as prayed. I hereby make the following orders: –
1. I declare that the arrest and detention of the Applicant at Refinery Station, Life Camp, Eleme, Rivers State from the 26th day of April, 2010 to the 30th day of April, 2010 by the 3rd and 4th Respondents at the instance and instigation of the 1st and 2nd Respondents is a gross violation of the Applicant’s right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999.
2. The Respondents are restrained by themselves or through their agents howsoever from further arrest or detention of the Applicant in respect of any matter relating to or connected with loan transaction between the Applicant and the 1st and 2nd Respondents.
3. The Respondents are ordered either by themselves or through their agents to release to the Applicant forthwith his Mac Truck with registration number XA 748 KMR now in the custody of the 4th Respondent at Refinery Police Station, Life Camp, Rivers State, Port Harcourt.
4. The Respondents are jointly and severally ordered to pay the sum of N30,000,000:00 as exemplary damages and costs of this proceedings to the Applicant for the gross violation of his right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended.”
This decision aggrieved the 1st and 2nd Respondents so they filed a Notice of Appeal dated 16th December, 2013 containing two grounds of appeal which shorn of their particulars reads as follows: –
GROUND ONE:
The learned trial Court (sic) erred in law when it held that the action of the police in arresting the Applicant/Respondent for an act of conversion of Mack truck with Registration Number XA 748 KMR belonging to the Respondents/Appellants as unjustified, the relationship of parties being purely civil and commercial.
GROUND TWO:
The trial court erred in law when it awarded the sum of N30,000,000:00 (Thirty Million Naira) to the applicant/respondent upon which the award was based. (pages 69 ? 71 of the record of appeal).
The record of appeal was compiled and transmitted to this Court on 2nd June, 2015 but deemed on 18th January, 2016. Appellants’ brief of argument was also filed on 24/11/2015 but deemed as properly filed and served on 18/1/2016, it was prepared by O. C. J. Okocha MFR, SAN, JP.
Learned senior counsel formulated two issues for determination as follows: –
1: Whether the learned Judge was right when he held that the arrest and detention of the 1st Respondent were inexcusable and constituted a gross violation of the 1st Respondent’s right to personal liberty?
2: Whether the learned trial Judge was right to award the 1st Respondent the sum of N30,000,000:00 as exemplary damages?
The 1st Respondent’s brief of argument was filed on 27th May, 2016 but deemed as properly filed and served on 31st January, 2018. It was settled by C. C. NWACHUKWU Esq. Learned counsel adopted the two issues canvassed by the Appellants.
While arguing this issue, learned senior counsel to the Appellants submitted that the arrest and detention of the 1st Respondent for a period of 4 days did not amount to a gross violation of the 1st Respondent right to personal liberty as guaranteed under Section 35(1) of the 1999 Constitution (as amended). That the said provision of the Constitution ought to be read with due regard to the particular facts of each case before it can be said that there has been a gross violation of the fundamental rights of any person to his personal liberty. Learned counsel quoted the relevant section of the Section and further submitted that upon reasonable suspicion of a person having committed an offence, the Police is entitled to arrest and detain the person so suspected. Cited: –
(1) Section 10(1) of the Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria, 2004.
(2) Section 4, Police Act, Cap. 919, Laws of the Federation of Nigeria, 2004.
(3) INSPECTOR-GENERAL OF POLICE V. OMAMORO OGBOMO (1957) WRNLR, 200, 2201.
That in the instant appeal, the Appellants duly reported a case against the 1st Respondent for suspected Criminal Conversion if Mac Truck which, even though in the custody and possession of the 1st Respondent, was actually property which belonged to the 1st Appellant. That a careful perusal of the decision of the learned trial Judge indicates that he focused his attention only on the fact that the transaction between the Appellant and the 1st Respondent was contractual based on the loan agreement between the 1st Respondent and 1st Appellant. That a careful perusal of the judgment of the lower Court will also reveal that the learned trial Judge failed to properly sign the document of Transfer of Ownership of Vehicle tendered and admitted in evidence as Exhibit ‘A’. That the learned trial Judge failed to make any finding on the effect and purported of the said document as reflected on page 126 of Records. Learned senior counsel submitted that in the light of the foregoing the learned trial Judge was in error when he held that the arrest and detention of the 1st Respondent was illegal and it constituted a gross violation of the 1st Respondent’s right to Personal Liberty. He urged the Court to resolve this issue for the Appellants.
While arguing this issue, learned counsel to the 1st Respondent submitted that the law is trite that the burden of justifying an arrest and detention is on the person who affected or procured the arrest. Cited OKONKWO V. OGBOGU (1996) 5 NWLR {Pt. 449} 429 at 433 – 434; JIM-JAJA V. COP & 2 ORS (2011) 2 NWLR {Pt. 1231} 375. That it was the task of the Appellants and the 2nd & 3rd Respondent to justify the arrest and detention of the 1st Respondent. This they failed to do.
That the Appellants tried to justify their act by stating there was reasonable suspicion of the commission of the offence of criminal conversion of the Mac Truck. That for conversion to amount to crime, there must be a fraudulent intent as held by this Court in OMOZEGHIAN V. ADJARHO & ANOR (2006) 4 NWLR {Pt. 969} 33 at 58 where the Court held thus: –
“Fraud is a matter with the implication of criminality and it is trite law that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
That the Appellants failed woefully to prove fraud. That there is evidence the Mac Truck was bought by the 1st Respondent with the loan he obtained from the 1st Appellant. Learned counsel quoted some portions of the letter of offer of the credit marked as Exhibit ‘A’. That the allegation of criminal conversion raised by the Appellants is an afterthought aimed at covering up on illegality. That the reasons for the arrest of the 1st Respondent are as stated in the petition written by the 2nd Appellant to the police on page 26 of the record of appeal. Learned counsel quoted the said letter verbatim.
Learned counsel further submitted that learned senior counsel to the Appellant made heavy weather of failure of trial Judge to consider the effect of the document attached to their counter affidavit and marked as Exhibit ‘A’. That that document has no evidential value because the ownership of the truck has nothing to do with the reason for the arrest and detention of the 1st Respondent. That the said 1st Respondent was arrested to recover the truck which he had already offered to the 1st Appellant. That this was explained by the 2nd Appellant in her counter affidavit at pages 15- 16 of the record of appeal. Learned counsel urged the Court to resolve this issue in favour of the 1st Respondent.
FINDINGS ON ISSUE 1:
The issue is: –
Whether the learned Judge was right when he held that the arrest and detention of the 1st Respondent were inexcusable and constituted a gross violation of the 1st Respondent’s right to personal liberty?
Upon considering the facts that gave rise to filing this suit as I narrated above it is obvious that the transaction between the 1st Respondent and the 1st Appellant is civil in nature as reflected in the letter dated 19/02/2009 written by the 1st Appellant to the 1st Respondent on pages 9 – 11 of the record of appeal. The letter is headed: –
‘OFFER OF CREDIT FACILITY’.
The opening paragraph reads thus: –
‘We are pleased to advise you that the Management of Diamond Bank Plc has approved your request for Personal Loan of N2,900,000:00 (Two Million, Nine Hundred Thousand Naira) only under the following terms and conditions’.
‘Repayment Source: In flow from truck haulage and cement sales’.
‘DEFAULT INDEMNITY’
If the Borrower fails to pay any sum (of principal, interest or otherwise) due to become due hereunder, the Borrower shall be liable to a penalty fee of 1% flat per month on un-paid portion on the facility. This fee, which shall be charged on the 1st working day after the sum is due will be in addition to the prevailing temporary overdraft interest rate on the unpaid sum from the date when such payment falls due up to the date of payment.”
Thus the conditions for repayment or where there is default in payment are all encompassed in the letter of offer of the credit facility. Nowhere is it stated that the 1st Respondent is entitled to take possession of the Truck, all it states is that the source of repaying the loan is the ‘inflow from truck haulage and cement sales’.
Therefore the assertion by the 1st Appellant in its letter to the 3rd Respondent dated 26/04/2010 that: –
‘He failed to give us the post-dated cheques but instead choose to give us the truck which he used the loan to buy. We kindly bring to your notice that we intend to recover the truck and get him to issue post dated cheques to Diamond Bank pending when he can get buyers for it and use the proceeds to clear the loan…
are introducing new documents for repaying the loan which are not contained in the original agreement.”
This is further compounded by the 2nd Appellant in her counter affidavit dated 15/12/2010 in paragraphs 4(iii), (iv) and (v) wherein she introduced the issue of the 1st Appellant having a lien on the truck: –
4(iii) The 1st Respondent was to have original documents of the Truck upon purchase as security for the loan together with a duly signed change of ownership. Document of change of ownership is attached and marked ?Exhibit ‘A’.
(iv) This was done because the Applicant did not have a chequeing account with another bank to issue post-dated cheque in payment of the loan?.
(v) The understanding was that the bank has lien on the Truck purchased until the loan is liquidated.”
As I stated above these conditions were not included in the original agreement between the 1st Appellant and the 1st Respondent that led to releasing the loan to the 1st Respondent on pages 9 to 11 of the record of appeal. The loan is to be repaid from the “inflow from the truck haulage and cement sales” no more no less. The only place the truck was mentioned is under “security” where it listed:-
“1: Direct Debit”
“2: Third Party Personal Guarantee.”
“3: Original Truck Documents upon purchase.”
Nowhere was it stated that the truck shall be a lien on the bank pending repayment of the loan by the 1st Respondent. It is only the original documents upon purchase that are to be in custody of the 1st Appellant as a security or guarantee pending when the loan is liquidated. Lien has been defined to mean a charge for a payment of debt or duty upon either real or personal property. It is a claim or charge on property for payment of some debt it is a right or claim against some interest in property created by law as an incident of contract. It is a right to enforce charge upon property of another for payment or satisfaction of debt. See FIRST BANK OF NIGERIA PLC V. SONGONUGA (2007) 3 NWLR {Pt. 1021} 230 at 266 – 267; UGO V. OBIEKWE (1989) 1 NWLR {Pt. 99} 566 at 590. In JAGAL PHARMALIMITED V. ALH. SALISU HUSSAINI & ANOR (2013) LPELR 21871 (CA) this Court while defining lien held per ABOKI JCA on page 28 paragraphs B & C thus: –
“The word lien has been judicially defined thus: ‘A lien is a right to retain that which is in one’s possession belonging to another till certain demands of the person in possession are satisfied.’See Afrotec Tech Service (Nig) Ltd. V. MIA & SONS Ltd. (2000) 15 NWLR {Pt. 692} page 730 at 786”.
As for the condition under which a lien arises this Court held per NIMPAR JCA in FASLAT ADEPOJU V. THE STATE (2014) LPELR 23312 (CA) on pages 19 – 20 paragraphs C & B as follows: –
“Lien has been defined by the Supreme Court in the case of AFROTEC TECHNICAL SERVICES (NIGERIA) LTD & ANOR V. MIA & SONS LTD (2000) ALL NLR 533 thus: A lien, broadly speaking is a right to retain that which is in ones possession belonging to another till certain demands of the person in possession are satisfied. The unpaid seller’s lien however is his entitlement to retain the goods in his possession until the buyer has paid or tendered the whole of their price. The Court went further to list the conditions under which a lien arises. It stated that a lien arises if the following conditions are satisfied, namely: 1. The seller is unpaid 2. The goods have been sold without any stipulation as to credit, or the stipulated period of credit has expired, or the buyer has become insolvent. 3. The seller is in possession of the goods or part of them”.
A lien therefore is not created where there is no contract. It is given by Law as an incident of contract.
More or less, a right to enforce a charge upon property of another for payment of debt. See FIRST BANK OF NIGERIA PLC V. OLUFEMI SONGONUGA (2005) LPELR 7495 (CA).”
Thus from the express definition of lien above it is obvious that it is basically a contact between a buyer of goods who did not complete payment of the goods and is retained by the seller until payment is completed. A lien is not created where there is no contract since it is an incident of a contract. The transaction between the 1st Respondent and 1st Appellant is contract on loan simpliciter.
This Court held in IMOH ETINYINABASI EKONG V. ISHIE COMMUNITY BANK (NIG) LTD & ANOR (2014) LPELR 22961 (CA) per GARBA JCA on pages 58 – 59 paragraphs D & A as follows: –
?Ordinarily, in modern banking practice, when a customer of a bank requests or applies for a loan or overdraft facility from the Bank it is the bank that would make an offer of facility stating and setting out clearly and specifically, the terms and conditions thereof, to the customer. An unqualified acceptance of the offer duly communicated to the bank by the customer in respect of all the terms and conditions thereof, would result to a valid and binding legal contract between them on the loan facility. See UBA V. LION BANK PLC (2006) ALL FWLR (293) 330.”
Thus in the instant suit there was a contract for loan facility between the 1st Appellant and the 1st Respondent. All the term and conditions of the contract were specifically and clearly stated in Exhibit ‘A’ to the 1st Respondent’s affidavit in support on pages 9 – 11 of the record of appeal. Where there is a breach of a contract the only option is to seek legal redress in a Court of competent jurisdiction.
In KRAUS THOMPSON ORGANISATION LIMITED V. UNIVERSITY OF CALABAR (2004) LPELR 1715 (SC) the Supreme Court held, per MUSDAPHER JSC (as he then was) on pages 19 & 20 paragraphs E & B. that: –
“An action upon a breach of contract may be commenced and determined in anyone of the following three places; namely: (a) where the contract was made; or (b) where the contract ought to have been performed; or (c) where the defendant is entitled to take advantage of any of the alternatives and rely on it to choose the venue convenient for him.”
The action for breach of a contract is normally instituted before a Court of competent jurisdiction as I stated above and not by engaging the police to recover a loan which was secured by a contract between the parties. Nowhere was it stated in Exhibit ‘A’ that the police can be recruited by any of the parties to recover the money loaned. The attempt by the 2nd Appellant to colour the civil contract for loan with criminality did not change the fact that it is a purely civil contractual obligation. The arguments in support of insertion of fraud or crime into the purely civil matter by the appellants and authorities cited in support thereof are hereby discountenanced by me. It is my holding that this issue is answered in the affirmative. The learned trial Judge was right when he held that the arrest and detention of the 1st Respondent cannot be excused as it constituted a violation of the fundamental rights to personal liberty of the 1st Respondent.
Issue 2: –
Upon considering issue 1 in the affirmative the logical question that follows is whether the trial Judge was right to award in favour of the 1st Respondent a staggering sum of N30,000,000.00 as exemplary damages. I have considered the facts deposed to by the 1st Respondent in his affidavit in support on pages 5 – 8 of the record of appeal. It is my finding that the Applicant/1st Respondent is not innocent of breach of a contract for loan of N2,900,000.00. Most of his depositions are hard to believe as they are self serving and I did not believe them. This is a man who by his own pleadings secured a loan of N2.9 million whose tenor is 24 months (which is N120,833.3 monthly), bought a Mac Truck and was dealing in cement. Thus Applicant has two sources of income as stated in the terms of repayment of the loan, to wit; ‘truck haulage and cement sales’. He started repaying the loan but failed to maintain the momentum on the nebulous excuse that ‘Dangote Cement went down and this affected haulage’. That he was advised to relocate to Calabar ‘where a new cement company named Uncem was enjoying good patronage’. That the truck was twice involved in an accident which to me is suspicious and hard to believe.
The deposition by the 2nd Appellant is more logical and believable when she averred that initially the Applicants saving account that ‘used to witness turnover of over N9,000,000.00 (Nine Million Naira) monthly suddenly stopped witnessing any transaction indicating diversion of funds’.
Although this does not justify the Appellants high handed method of inviting the police to recover the loan, but it gives a glimpse of the mindset of the Applicant. Thereafter he started to avoid contact with the Appellants in his effort to shirk his responsibility of repaying the loan he voluntarily took from the Appellants. The law is trite that exemplary damages are not awarded as a matter of course.
In FIRST BANK OF NIGERIA PLC & ORS V. A-G OF THE FEDERATION & ORS (2013) LPELR 20152 (CA) this Court held per AKOMOLAFE-WILSON JCA on page 7 paragraph F as follows: –
“For a party to be entitled to exemplary damages, it is his duty to prove that the action of respondent is outrageously reprehensible.”
In JOSEPH ODOGU V. ATTORNEY-GENERAL OF THE FEDERATION & ORS (1996) LPELR 2228 (SC) the Apex Court held, per OGUNDARE JSC page 3 paragraph A thus: –
“exemplary damages must be claimed and proved before they can be awarded. See Eliochin (Nig) Ltd. & Ors V. Mbadiwe.”
It is my finding that although Applicant claimed for exemplary damages of N50 million naira but he did not succeeded in proving the said sum. I agree with the learned senior counsel to the Appellants that the learned trial Judge in his judgment on pages 113 – 127 of the record of appeal did not proffer any cogent reason for such an award. Exemplary damages, as I said above, are not awarded as a matter of course.
They can be awarded subject to the following conditions: –
1: Where there is an express authorization by statute.
2: In the case of oppressive, arbitrary or unconstitutional action by servants of the government; and
3: Where the Defendant’s conduct has been calculated by him to make a profit for himself, which might well exceed the compensation payable to the Plaintiff.
See: DR. ONAGORUWA & ORS V. I. G. OF POLICE & ORS (1991) 5 NWLR {Pt. 193} 593 at 647 – 648 E & C and 649 A & B; COMPLETE COMMUNICATIONS LTD & ANOR V. MISS BIANCA ONOH (1998) 5 NWLR {Pt. 549} 197, at 221 E & G.
I have judicially noted the fact that the 1st Respondent spent 4 days in detention (from 26th to 30th April, 2010). It is my holding that he deserved to be compensated for being illegally detained by 2nd and 3rd Respondents at the instigation of the Appellants. It is therefore my holding that for each day the 1st Respondent spent in the police station he is entitled to N250,000:00. I therefore award in favour of the 1st Respondent the sum of N1,000,000.00 (One Million Naira) only as damages against only the Appellants jointly and severally. This award does not debar the 1st Appellant from recovering the amount it gave to the 1st Respondent as loan through legal and legitimate channel plus interest and any cost it may incur in the process. I hereby set aside the award of N30,000,000.00 examply damages by the learned trial Judge. This is allowed in part. There shall be no order as to cost.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, BITRUS GYARAZAMA SANGA JCA gave me the opportunity of reading the lead judgment before it was delivered. I agree with my learned brother and I abide by the consequential orders.
Appearances:
E. O. OHAKA, ESQ.For Appellant(s)
C. C. NWACHUKWU, ESQ.- FOR
1ST RESPONDENT.
No appearance for 2nd and 3rd Respondents.For Respondent(s)
