ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. EJENAVI JONAH OYUBU & ORS
(2019)LCN/13897(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/L/1428C/2016
RATIO
CONSTITUTIONAL LAW: BAIL CONDITIONS: WHEN AN ACCUSED CAN BE HELD BEYOND 24 HOURS
This according to the Appellant was granted within the period of 24 hours. The question that comes to mind is whether the inability to fulfill the bail condition is an exception recognized by law to hold a person beyond the time stipulated by law? I have read the relevant provisions of the Constitution of the Federal Republic of Nigeria 1999, the EFCC Act 2004 and the Administration of Criminal Justice Act,2015, I cannot see any provision that gives the Appellants safe landing in keeping the 1st Respondent in their custody more than 24 hours without trial or obtaining any order for reminding him on the ground that the Respondent could not meet the bail condition. Although technically, once a person has been granted bail, it means, he is free to go home after meeting the conditions. That does not take away the obligation on the Appellants to bring him before a Court or getting a remand order as required by law within the period allowed by law. If the Appellants, as in the case involved in this appeal, does not within 24 hours either charge the 1st Respondent to a Court or obtain a remand order, they expose themselves to be liable for the violation of the fundamental right of the 1st Respondent. In the circumstance of this case, I have no difficulty in agreeing with the submission of the Respondents? counsel that if the 1st Respondent is unable to meet the bail condition then the Appellant should either charge him to Court immediately or get a remand order. This has to be done within the time frame. PER TOBI EBIOWEI , J.C.A.
DAMAGES: WHETHER AN APPELLATE COURT CAN REDUCE DAMAGES GRANTED BY THE TRIAL COURT
As an appellate Court, I have the right to reduce the amount given as damages. See Ogbenna & Ors vs Kanu & Ors (2018) LPELR-45072 (CA). PER TOBI EBIOWEI , J.C.A.
DAMAGES: THE THREE TYPES OF DAMAGES THAT CAN BE AWARDED IN MATTERS OF FUNDAMENTAL RIGHTS; SPECIAL, GENERAL AND EXEMPLARY DAMAGES
I will take a brief excursion into the law on damages in a matter dealing with breach of a fundamental right. On issues such as this, there are three major damages which a Court considers. These are special, general and exemplary damages. These three has different considerations and consequences. For a Court to grant special damages, this must be specifically pleaded and proved. In ISC Services Ltd vs. Genak Continental Ltd & Anor (2006) 6 NWLR (Pt.922) 481, this Court held:
?In a claim of damages, the onus of proving such damages is on the claimant, and he can only discharge this burden by showing credible evidence that he is indeed entitled to such damages claimed.
In the case of Garba v. Kur (supra) at page 295, this Court set out the guiding principle governing the award of special damages in the following words:
“An award of special damages, unlike an award of general damages, is not based on the discretion of the trial Court, but on credible evidence adduced before the trial Court which strictly proves the plaintiff’s entitlement to the award …
Similarly, in Obasuyi & Anor vs Business Ventures Ltd (2000) 5 NWLR (Pt.658) 668, the Supreme Court per Iguh, JSC held:
The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he, indeed, is entitled to an award under that head. See Oshinjinrin & Ors. vs. Elias & Ors (1970)1 All N.L.R. 153 @156, Odulaja vs. Haddad (1973)1 All N.L.R 191 @ 196. Accordingly, where the precise amount of a particular item of damage is known or has become manifest before the trial, either because it has already occurred and has thus become crystallised or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved. See Mayne & McGregor on Damages, 12th Edition, Article 973 @ pg. 815. As Bowen L. J. put it in Ratcliffe vs. Evans (1892)2 Q. B. 524 in relation to proof of special damages, as follows:-
“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be … proved. As much certainty and particularity must be insisted on …in … proof of damage as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
PER TOBI EBIOWEI , J.C.A.
DAMAGES: PURPOSE FOR THE AWARD OF A DAMAGE
In Agu vs. General Oil Ltd (2015) LPELR-24613 (SC) Galadima, JSC at page 31-32 held:
The basic object of an award of damages is to compensate the plaintiff for the loss of the damage of injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA vs. R. O. ALLI & ANOR (1992)10 SCNJ 34. ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR vs. EKWENEM (2009) 6-7 (Pt. II) SC 5. PER TOBI EBIOWEI , J.C.A.
EXEMPLARY DAMAGES: PURPOSE
Exemplary damages are awarded to serve as an example to deter the person from further committing an offence and to deter others from committing an offence. This is awarded against an oppressive and arbitrary act of government officials to serve as a detriment to others.In Odiba vs. Azege (1998) 7 SC (Pt.1) 79, the Supreme Court held:
?In the case of Eliochin (Nig.) Ltd vs. Victor Mbadiwe (1986) 1 NWLR (Pt.14) 47 @ 65. Obaseki J.S.C., contributing to the lead judgment
Held: The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant?s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like?. The behavior of the appellant falls within the first category of cases listed by Lord Devlin in the case of Rookes vs. Barnard (1964) A. C. 1129, in which exemplary damages could be awarded. Lord Devlin held, in that case, that exemplary damages could be awarded against oppressive, arbitrary and unconstitutional action by servants of the government.
This is common in fundamental rights cases. Exemplary damages are awarded to forestall people from taking advantage of others or the law and indeed using their power arbitrarily. PER TOBI EBIOWEI , J.C.A.
DAMAGES: HOW TO ASSESS DAMAGES: ISSUES THE COURT SHOULD CONSIDER
In deciding how to assess damages, this Court in Nigeria Customs Services Board vs. Chukwunta (2016) LPELR-41479 (CA) held thus:
The term general damages covers all losses which are not capable of exact qualification. It includes all non-financial loss. Items of general damages need not and should not be specifically pleaded, but some evidence of such damage is required. Heads of general damages are:
(a) pain and suffering
(b) loss of amenities
(c) loss of expectation of life
(d) future loss of earnings or earnings capacity and
(e) future expenses
Okuneye vs. Lagos City Council (1973) 2 CCHCJ pg 38. There is indeed no fixed rule by which to assess general damages. The matter is therefore in the discretion of the Court to award a fair and reasonable compensation having regard to the circumstances of the particular loss.
Okuneye vs. Lagos City Council (supra). PER TOBI EBIOWEI , J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION Appellant(s)
AND
1. MR. EJENAVI JONAH OYUBU
2. KISHALOM NIGERIA LIMITED
3. BAWA USMAN KALTUNGO Respondent(s)
TOBI EBIOWEI , J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice A.M.ANKA of the Federal High Court of the Lagos Division delivered on 31/8/16. The matter before the lower Court is on the infringement of the Fundamental Right of the Respondents (Applicants in the lower Court). Th
