EMMANUEL UKPAI v. MRS. FLORENCE OMOREGIE & ORS
(2019)LCN/13034(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/B/463/2013
RATIO
FUNDAMENTAL RIGHTS RULES, 2009: WHETHER THE PROVISIONS OF THE HIGH COURT OF KADUNA CIVIL PROCEDURE RULES CAN REPLACE THE FUNDAMENTAL RIGHTS RULES OF 2009
It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FUNDAMENTAL RIGHTS RULES, 2009: THE EFFECT OF FAILURE TO FILE PROCESSES WITHIN THE STIPULATED TIME
The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be. Its Order 9 reads:
“Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to:
i. Mode of commencement of the application;
ii. The subject matter is not within Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DAMAGES: GENERAL DAMAGES: NATURE AND DEFINITION
General damages, also termed direct or necessary damages are damages that the law presumes and which often flows from the nature and type of wrong complained of. It aims at compensating a party for a harm that resulted from a wrongful act. General damages need not be specifically proved. See UBN Plc v. Ajabule & Anor (2011) LPELR-8239 (SC), (2011) 18 NWLR Pt. 1278, Pg.152 SC. General damages are awarded based on losses that flowed naturally from the adversary and it is based on presumption of law and doesnt have to be pleaded or proved.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DAMAGES: GENERAL DAMAGES: IT IS GRANTED AT THE DISCRETION OF THE COURT
The award of general damages is within the discretion of the judge. Usually, where an award of general damages has been made, an appellate Court would ordinarily not interfere except where the trial judge failed to take relevant matters into account, acted under a misapprehension of law, the amount awarded was either too low or high and where failure to interfere would amount to injustice. See Cameroon Airlines v. Otutuizu (2011) LPELR-827 (SC), (2011) 4 NWLR Pt. 1238, Pg. 512 SC.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DAMAGES: GENERAL DAMAGES:EXEMPLARY DAMAGES: DEFINITION AND NATURE
On the other hand, exemplary damages has been described as an intermix of general and punitive damages. While speaking on the nature of exemplary damages, the Supreme Court in Eliochin (Nig) Ltd & Ors v. Mbadiwe (1986) LPELR-1119 (SC), (1986) 1 NWLR Pt. 14, Pg. 47 SC held as follows:
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 can come 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 Court in Kabo Air Ltd v. Mohammed (2014) LPELR-23614 (CA), (2015) 5 NWLR Pt. 1451, Pg.38 (CA) also said:
Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in the future. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law – University of Calabar v. Oji (2012) 3 NWLR (Pt. 1288) 418 and Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EXEMPLARY DAMAGES: PURPOSE
Exemplary damages, otherwise known as punitive damages is usually awarded to meet the end of punishment. A claim for exemplary damages need not be expressly pleaded. It is sufficient if the facts pleaded supports the award of exemplary damages. See CBN & Ors v. Okojie (2015) LPELR-24740 (SC), (2015) 14 NWLR Pt. 1479 at 321 SC. Thus, the claim for exemplary damages must be shown to have resulted from the malicious act of a party before it can be awarded.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FUNDAMENTAL RIGHTS: DAMAGES FLOW FROM THE VIOLATION OF THE RIGHT ALLEDGED
It is well settled law that in a fundamental rights case, the award of damages naturally flows from the violation of the right alleged to have been breached. The purpose of awarding damages in a fundamental right case is to compensate a person for the injury suffered by him. Thus, once it is established that the right of a person has been violated and infringed upon, compensatory and in some cases, exemplary damages would be attracted. See Abiola v. Abacha (1998) 1 HRLRA 447, (1997) 6 NWLR Pt. 509, Pg. 413; Punch (Nigeria) Ltd v. A-G Federation (1998) 1 HRLRA 448. Usually, the damages to be awarded in a breach of a persons fundamental right must be such that would amount to a fair and balanced estimate for the alleged breach that resulted from the Respondent?s conduct. See Arulogun v. Commissioner of Police, Lagos State & Ors (2016) LPELR-40190 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
EMMANUEL UKPAI
-APPELLANT/ CROSS RESPONDENT – Appellant(s)
AND
1. MRS FLORENCE OMOREGIE
-RESPONDENT
2. PC. SYLVESTER UGIAGBE (448504)
(IPO EVBUOTUBU POLICE STATION)
3. INSPECTOR FRIDAY
(INSPECTOR CRIME, EVBUOTUBU POLICE STATION)
4. S.P GABRIEL EZEH
(DIVISIONAL POLICE OFFICER, EVBUOTUBU POLICE STATION)
5. COMMISSIONER OF POLICE, EDO STATE
-RESPONDENT/CROSS APPELLANT – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Benin delivered by Honourable Justice P.I. Ajoku on 20/9/2013 wherein judgment was given in favour of the Appellant/Cross-Respondent with an award of damages for N300,000.00 (Three Hundred Thousand Naira).
The facts that lead to this appeal are as follows:
The Appellant/Cross-Respondent, a car dealer, alleged that he was arrested by the 2nd ? 4th Respondents/Cross-Appellants because of the instigation made to them by the 1st Respondent that he stole her RAV-4 car. The allegation that led to the arrest of the Appellant/Cross-Respondent was premised on the allegation that the 1st Respondent saw her stolen car in the custody of the Appellant/Cross-Respondent. The Appellant/Cross Respondent was thereafter arrested and taken to the State Criminal Investigation Department where it was revealed in a subsequent investigation carried out by the O.C anti-vehicle theft that a difference existed in the Chassis and Engine Number of the RAV-4 car found in the custody of the
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Appellant/Cross-Respondent who is a car dealer and that of the car of the 1st Respondent which was alleged to have been stolen by the Appellant/Cross-Respondent. Consequently, the Police discharged the Appellant/Cross-Respondent and dismissed the allegation against him.
?Thereafter, the Appellant/Cross-Respondent alleged that he suffered injury to his reputation which affected his business fortunes and exalted positions he held in the society. The Appellant/Cross-Respondent then filed an application for the enforcement of his fundamental right at the trial Court claiming the following reliefs:
a. A DECLARATION that the 1st Respondent?s complain was malicious, vindictive, oppressive and unfounded in law and facts.
b. A DECLARATION that the detention of the Applicant from on the 19th to 20th January, 2013 is illegal, debasing, unconstitutional and null and void as it violates the Applicant?s fundamental rights.
c. A DECLARATION that refusing of bail to the Applicant on 19th January 2013 is illegal, unconstitutional, oppressive, null and void as it violates the Applicant?s fundamental rights.
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d. A DECLARATION that the mode of harassment and intimidation against the Applicant is oppressive, unconstitutional, null and void as it violates the Applicant?s fundamental rights under Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
e. A DECLARATION that the detention, harassment of the Applicant by the 1st ? 4th Respondents is illegal, oppressive, unconstitutional, null and void as it violates the Applicant?s fundamental rights enshrined under Section 34,35,36,37, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
f. AN ORDER for general, aggravated and exemplary damages in favour of the Applicant for the sum of Fifty Million Naira (N50,000,000.00) only against the Respondents jointly and severally as reparation for the series of arrest and detention, humiliation, harassment and intimidation of the Applicant without proper investigation by 2nd ? 4th Respondents.
The learned Trial Judge found in favour of the Appellant/Cross-Respondent against only the 2nd – 5th Respondents at trial and ordered that the sum of Three Hundred Thousand Naira (N300,000.00) be paid to him as
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damages by the said 2nd ? 5th Respondents at trial.
Dissatisfied with the judgment, specifically the quantum of damages, the Appellant filed a Notice of Appeal on 9/10/13. Record was transmitted on 27/11/13. The Appellants brief was filed on 8/1/14. The Appellant who is also the Cross-Respondent filed his Cross-Respondents brief on 12/2/16 pursuant to an order of Court made on 5/2/16.
The 2nd – 5th Respondents also filed a Notice of Cross-Appeal on 23/1/14 wherein complaints were articulated against the merit of the judgment of the learned trial judge in its entirety. The 2nd ? 5th Respondents? brief was filed on 8/2/18 and deemed filed on 28/2/18. The Respondents/Cross-Appellants? filed an amended 2nd ? 5th Respondents/Cross-Appellants brief on 8/2/18 and deemed filed on 28/2/18. The proof of service showed that the 1st Respondent was served but did not appear or file any processes before this Court. This is not surprising as neither the Appellant/Cross Respondent nor the 2nd – 5th Respondents/Cross Appellants has any relief against the 1st Respondent whose presence as party on the record in this
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appeal is a mere surplusage and superfluous.
In the brief settled by U.S. Musa Esq., the Appellant raised a sole issue for determination as follows:
Whether the general damages awarded against the 2nd 5th Respondents by the trial judge was adequate having regards to the injuries suffered by the Appellant on account of the acts of the 2nd – 5th Respondents.
In the 2nd ? 5th Respondents brief settled by J.S Ohiafi Esq., the Respondents raised also a sole issue for determination as follows:
On whether award of general damages is within the precinct of a trial Court and when appellate Court will interfere thereof.
The following issues were identified by the 2nd ? 5th Respondents/Cross-Appellants in his amended Cross-Appellant?s brief for the determination of this Cross Appeal:
a. Whether the trial Court was right to have assumed jurisdiction in an incompetent affid
