FIRST BANK OF NIGERIA PLC & ORS v. BONIFACE CHUKWU
(2018)LCN/12024(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of July, 2018
CA/OW/130/2012
RATIO
DAMAGES: THE NATURE OF DAMAGES
“Exemplary damages is in the nature of general damages with an attendant punitive damages thrown in for good measure. It is fixed high enough to be not only compensatory but also punitive. Basically, the primary object of an award of damages is to somewhat assuage and compensate the plaintiff for the harm or injury done to him. The secondary object is to punish the defendant for his intransigent conduct in inflicting that harm or injury. Achieving such secondary object can be by the award in addition to the normal compensatory damages; damages which go by various names such as aggravated damages, exemplary damages, punitive damages, vindictive damages and even retributory damages. It becomes invocable whenever the conduct of the defendant is considered/regarded as being sufficiently arbitrary, derogatory, oppressive, or outrageous, to warrant some form of additional sanction, such as where it portends/discloses malice, fraud, cruelty, insolence and flagrant disrespect/disregard for the law and the like. It is a sort of extra compensation given to the plaintiff for the harm or injury to his feelings and dignity. See the cases of Eliochin (Nig.) Ltd. & Ors. v. Victor Ngozi Mbadiwe (1986) 1 SC 99; Adeyemi Candide-Johnson v. Mrs. Esther Edigin (1990) 1 NWLR (Pt. 173) 316; Union Bank Plc. V. Nnoli (1990) 4 NWLR (Pt. 145) 530.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. FIRST BANK OF NIG. PLC
2. EMMA IKPE
3. CPL KHEHINDE
4. DSP UWA EGUAKUN
5. COMMISSIONER OF POLICE, SPECIAL FRAUD UNIT, NIGERIA POLICE FORCE,IKOYI LAGOS – Appellant(s)
AND
BONIFACE CHUKWU – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Abia State of Nigeria, sitting at Aba (hereinafter referred to as the lower Court). Coram: Hon. Justice T. U. Uzokwe J., (hereinafter referred to as the learned trial judge). The said judgment was delivered on the 2nd day of February, 2012.
The suit which culminated into this appeal was a fundamental rights enforcement proceeding. It was commenced by a motion on notice and accompanying processes filed on the 3rd day of March, 2011, wherein the applicant/respondent (hereinafter referred to as the respondent) sought in the main for the grant of the following reliefs:
(a) A declaration that the arrest and detention of the applicant by the 2nd, 3rd and 4th respondents at the behest of the 1st respondent is unlawful and amounts to a gross violation of the Applicants fundamental rights as guaranteed by Sections 34 (1) (a) and 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
(b) An order restraining the 1st respondent from using the machinery of the Nigeria Police Force to harass and intimidate the applicant over the subject matter of this suit.
(i) The sum of N50,000,000.00 (Fifty Million Naira) only against the respondents jointly and severally as exemplary damages for the unwarranted and unconstitutional infringement of the fundamental rights of the applicant.
The application mentioned above was supported by an affidavit and a further affidavit deposed to by the respondent himself. In response to the above stated action, the 1st appellant/1st respondent, filed a 33 paragraph counter-affidavit deposed to by one Mr. Ifeanyi Onyebukwa (an employee of the 1st appellant), on the 12th day of July, 2011. The 2nd 5th appellants/respondents (hereinafter referred to as the 2nd – 5th appellants) for reason(s) best known to them, failed and/or neglected to respond to the respondent’s action.
The respondents case against the appellants was that he was a customer to the 1st appellant, consequent upon which he was granted a loan in the sum of N40,000,000.00 (Forty Million Naira). He stated that the loan was secured by a legal mortgage. An additional loan of N10,000.000.00 (Ten Million Naira) was also granted to the respondent by the 1st appellant. He further stated that prior to the grant of the loan, the 1st appellant conducted a valuation of the market project of the mortgaged property and the value of the property was put at N211,000,000.00 (Two Hundred and Eleven Million Naira.) The Valuation Report was attached asan exhibit and marked as Exhibit D. He stated that the loan was required to carry out one of his projects, for the construction of Ehere Market. The respondent claimed that the agreement between the parties was that the loan would be repaid from the proceeds, realized from the sale of the market stalls. That while the project was still on going, he received a call from one of the 1st appellants officer, Esther Ucheaghra, 1st appellants Head of Credit Management (at the time) at the Ikot Ekpene branch of the 1st appellants bank. That he was invited to quickly come for an urgent and important information needed from him, in respect of the respondents transaction with the 1st appellant.
The respondent stated that upon getting to the said Esther Ucheagharas office, he met two plain clothes Police officers who arrested and took him to Calabar before he was transferred to Lagos. The respondent claimed that the arrest and detention were orchestrated by the 1st appellant in an effort to recover the loan advanced to him. He claimed that it was after the 4th appellant discovered that the 1st appellants complaint against him was purely a civil matter that he was released on bail, from police custody. The respondent stated that he was arrested on the 23rd day of November, 2010 and he was finally released on bail on the 25th day of November, 2010. The respondent further stated, that he was also forced to report back to the 4th appellants office at Special Fraud Unit, Ikoyi Police Station, Lagos State for further investigation of the 1st appellants report of fraud levelled against him. The respondent annexed his flight ticket for the initial movement to Lagos as an exhibit, consequent to his arrest and subsequent visit to the 4th appellants office.
The respondent stated that he was humiliated and injured by reason of his arrest and that he incurred expenses as a result of the acts of the appellants.
The 1st appellant in reply stated that the loans granted to the respondent were diverted by him from the main purpose of the grant to an entirely different purpose. The 1st appellant further stated that instead of the respondent to repay or service the initial loan granted to him, he resorted to and requested for fresh loans from the 1st appellant. The 1st appellant however, denied that it instigated or had anything to do with the arrest and detention of the respondent. The 1st appellant maintained that it did not write any petition or made any complaint against the respondent to the 2nd 5th appellants and therefore not responsible for the ordeals suffered by the respondent, if any. Thus, the 1st appellant maintained that the instant action was contrived by the respondent to prevent it from recovering the loans advanced to him. The learned counsel for the parties duly adopted their respective processes filed at the lower Court and the case was adjourned for delivery of judgment.
The learned trial judge after due and thorough examination of the parties affidavits and the exhibits attached thereto, and in a reserved judgment, found that the respondent has established his case on the preponderance of affidavit evidence and entered judgment in his favour in the following terms:
1) It is hereby declared that the arrest and detention of the Applicant by the 2nd, 3rd and 4th Respondents at the behest of the 1st respondent is unlawful and amounts to a gross violation of the Applicants fundamental rights as guaranteed by Sections 34 (1) (a) and 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
2) The 1st respondent is hereby ordered to restrain himself from using the machinery of the Nigeria Police Force to harass and intimidate the applicant over the subject matter of this Suit.
3) The respondents are hereby ordered to pay the sum of N5,000,000.00 jointly and severally as exemplary damages for the unwarranted and unconstitutional infringement of the fundamental rights of the applicant.
4) The applicant is also entitled to the cost of this suit assessed at N50,000.00.”
The 1st appellant was however dissatisfied with the above stated decision of the lower Court and has appealed against the same vide the notice of appeal filed on the 3rd day of April, 2012. The 1st appellants complaints against the lower Courts judgment were captured in the four grounds of appeal contained therein. The said grounds of appeal without their particulars are reproduced below as follows:
GROUND 1:
The learned trial judge erred in law and misdirected himself when he held that the alleged arrest and detention of the claimant/respondent (if any) at the behest of the 1st Defendant/Appellant was unlawful.
And he further held restraining the 1st appellant from using 2nd 5th appellants to harass and intimidate the claimant/respondent.
GROUND 2:
The learned trial judge erred in law and misdirected himself when he awarded excessive damage of N5,000,000.00 (Five Million Naira) as exemplary damages against the 1st 5th appellants for the alleged infringement of the claimant/respondents fundamental rights as contained in Sections 34 (1) (a) and 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
GROUND 3:
The damage awarded against the appellants is excessive within the circumstance considering the fact that the claim for exemplary damage was not made out in the respondents claim nor was there any particulars of damage proved.
GROUND 4:
The decision is against the weight of evidence and decided authorities and cannot be supported by the affidavit and documentary evidence (if any) before the honourable Court
In accordance and compliance with the rules of this Court the record of appeal was compiled and transmitted to this Court, and the same was served on the parties. Thereafter, the learned counsel for the parties filed and exchanged their respective briefs of argument. The 1st appellants brief of argument was prepared by Kingsley C. Ehiogu Esq., and filed on the 11th day of December, 2017. The said 1st appellants brief of argument was deemed properly filed and served by the order of this Court granted on the 19th day of February, 2018. The respondents brief of argument on the other hand was prepared by N. D. Ojeh Esq., it was filed on the 29th day of March, 2018.
Towards the determination of this appeal, the learned counsel for the 1st appellant donated three issues for resolution/determination. The issues are reproduced below as follows:
1. Whether the learned trial judge was right in holding and declaring that the arrest and detention of the respondent by the 2nd, 3rd and 4th appellants at the behest of the 1st respondent was unlawful and amounts to a gross violation of the respondents fundamental right, when there was no evidence to proof that the respondent was actually arrested and detained at the behest of the 1st appellant. (Ground 1).
2. Whether the respondent was entitled to exemplary damages in the absence of proof of such damage. (Ground 3).
3. Whether the award of N5,000,000.00 damages against the appellants is not excessive within the circumstances of this case especially having regard to the law relating to award of damages and lack of prove of damage. (Ground 2).”
On his own part, the learned counsel for the respondent distilled two issues for resolution and determination. The issues are reproduced below as follows:
3.02. Whether trial Court was right in holding that the arrest and detention of the respondent by the 2nd, 3rd and 4th appellants at the behest of the 1st appellant was unlawful and amounts to a gross violation of the respondents fundamental rights. (Ground 1).
3.03. Whether the award of N5,000,000.00 (Five Million Naira) as exemplary damages against the Appellants was excessive in the circumstances of this case. (Ground 2, 3 and 4).
I have examined the two sets of issues as formulated by the learned counsel for the parties vis-a-vis the judgment complained against and the 1st appellants notice of appeal, and I am of the firm viewpoint that the set of issues as formulated by the 1st appellant are apt and sufficient. Both the issues formulated by the learned respondents counsel and the learned counsel for the 1st appellant can be borne out by the notice of appeal. Thus, the said issues donated by the learned counsel for the 1st appellant are hereby adopted by me for resolution and the eventual determination of this appeal.
However, it is important to observe that no issue was formulated by the learned 1st appellants counsel from the 1st appellants ground four of the grounds of appeal. In accordance with the established position of our law and practice of this Court, the said ground of appeal is deemed abandoned and accordingly struck out.
ARGUMENTS ON ISSUES.
The learned counsel to the 1st appellant commenced and submitted with regard to Issue No. 1, that the lower Court was in error when she held declaring that the arrest and detention of the respondent by the 2nd, 3rd and 4th appellants at the behest of the 1st respondent was unlawful and amounts to a gross violation of the respondents fundamental right. The learned counsel contended, that the respondent has failed to establish with credible evidence that he was arrested as alleged and thus, he submitted that the respondent has also failed to prove that his fundamental right has been infringed, and the respondents action ought to have been struck out. He referred us to the case of Fajemirokun v. C. B. (C. L.) (Nig.) Ltd. (2002) 10 NWLR (Pt. 774) 95.
The learned counsel for the 1st appellant then maintained that the respondent in his 29 paragraph affidavit labored to exhibit more that 9 Exhibits, but none from the annexed documents remotely related to his arrest and detention and also none was exhibited in support of an alleged instigation of the police by the 1st appellant. And curiously again, no single individual was mentioned in all paragraphs of his affidavit to have secured the respondents bail from the 3 police formations referred to by the trial judge.
The learned counsel contended, that the learned trial judge thereby relied on speculative evidence in entering judgment in favour of the respondent, as the respondent failed to exhibit one single document to prove that he was actually arrested and detained at the behest of the 1st appellant. Thus, he submitted, that non production of these documents (that is, 1st appellants petition against the respondent and appellants bail document) amounted to withholding evidence and fatal to the respondents case.
He relied on the provision of Section 137 (d) of the Evidence Act, 2011 and the case of Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635. Learned counsel for the 1st appellant submitted that exemplary damages are usually awarded where statutes prescribe them and they are awarded when claimed and proved. He referred us to the case of Eliochin(Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Complete Communication Ltd. v. Onoh (1998) 5 NWLR (Pt. 549) 197. The learned counsel for the appellants contended, that the respondent in the instant case did not plead nor prove the exemplary damages and the same was wrongly awarded to him by the learned trial judge.
He stated that, the only visible evidence to the eye of any bystander which can be deduced from the judgment of the trial Court was that of an outburst of emotion clouded by sentiments, but not backed by credible evidence … and sentiments as the same has no place in law. He referred us to the case of Kabo Air Ltd. v. Mohammed (2015) 5 NWLR (Pt. 1451) 38.
With regard to Issue No. 3, the learned counsel for the 1st appellant argued that the sum of N5,000.000.00 (Five Million Naira) awarded against the appellants and in favour of the respondent was excessive having regard to the circumstance of this case. He observed that the only reason for awarding the huge amount as damages was on the basis that the respondent was a family man. According to the 1st appellant’s learned counsel, the said reason given by the learned trial judge was not only speculative but sentimental. It was contended that according to law, that with the expression of emotion by the trial Court; this Court therefore has the jurisdiction to interfere in the aforesaid trial Courts award of damages in this case which he considered to be excessive.
He referred once again to the case Kabo Air Ltd. v. Mohammed (supra). He therefore urged this Court to resolve these issues as argued above in favour of the 1st appellant.
In reply, the learned counsel for the respondent stated that by virtue of Section 46 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) empowered any person whose fundamental right is being or has been infringed upon to apply to the High Court in that State for redress, based on the above cited constitutional provision. Thus, the respondent has rightly instituted this action to seek redress for his unlawful arrest and detention. The learned counsel submitted, that where an applicant alleged and proved that he was arrested and or detained, it is incumbent on the respondent such as the 1st appellant herein who effected or instigated the arrest and or detention to establish in evidence that the arrest or detention was lawful. He referred us o the case of Ejefor v. Okeke (2000) 7 NWLR (Pt. 665) 363.
The learned counsel for the respondent maintained that the respondent has established that he was arrested, detained, humiliated and brutally treated by the appellants. He stated further that the respondent by his affidavit evidence and exhibits attached thereto, established that the subject matter of his arrest was founded on civil contract (that is, loan contract). He submitted, that the police is not empowered by law to recover debt nor do they have power to detain a person for breach of contractual obligations, because it is an action totally outside their legal jurisdiction by doing so they violate the persons right to freedom of movement. He supported his submission with the case of Mclaren v. Jennings (2002) ALL FWLR (Pt. 154) 528.
The learned counsel for the respondent submitted, that the failure of the 2nd 5th appellants to file a counter affidavit against the respondents affidavit stating the facts of how he was arrested and detained by them is deemed that they have admitted all the specific allegations made against them by the respondent. He maintained that the payment made to the 4th appellants account receipt of which was exhibited in the respondents further affidavit has further established that the respondent was arrested with respect to the contractual transactions that he had with the 1st appellant.
He referred us to the cases of Chief Ukikairo Monday Efet v. INEC &Ors. (2011) 1 2 S. C. (Pt. III) 61 and Chief Edmund I. Akaninwo & Ors. v. Chief O. N. Nsirim & Ors. (2008) 1 SCNJ 272. He concluded with the submission that the respondent has established in evidence that he is entitled to the award made by the learned trial judge in his favour.
ISSUE 1
The 1st appellants counsel contended in respect of this issue, that the respondent failed to establish in evidence that he was arrested. It should be noted that the allegation with regard to the arrest was specifically made against the 2nd 5th appellants who failed and/or elected not to controvert the respondents weighty allegations against them. This attitude of the 2nd 5th appellants is tantamount to admission, that all the facts and/or evidence proferred by the respondent which alleged that he was arrested and detained by the 2nd 5th appellants at the premises of the 1st appellant are deemed admitted by them, and the lower Court was right when it accepted and acted thereon. See the cases of Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 and Hillary Farms Ltd. v. M/V Mahtra (2007) 14 NWLR (Pt. 1054) 210.
Again, the 1st appellants counsel contended, that the respondent to properly prove that he was arrested and detained, was expected to tender in evidence the petition written against him, and other documents to show that he was in fact arrested and detained. I find this contention somewhat misconceived, because such documents as requested by the 1st appellants counsel are ordinarily in the custody of the 2nd 5th appellants who were also served with requisite processes in this case. It is thus unlikely that a party against whom an action has been instituted will release any documentary evidence that could aid the case of his adversary. In any event, the facts of the respondents arrest and detention have been admitted or deemed admitted by the arresting authority and it is accordingly deemed proved, thus, the need to tender those documentary evidence will amount to an act done out of abundance of caution or surplus age.
The 1st appellant vehemently denied that it did not instigate the arrest of the respondent nor provide the means for his movement to Calabar and Lagos. The learned trial judge after a thorough examination and evaluation of all the pieces of evidence adduced by the parties, found that the respondents arrest was instigated and or orchestrated by the 1st appellant through one of its staff, Esther Ucheaghara, the then Head of Credit Department and who later became the Manager of the 1st appellants branch at Ikot Ekpene Road Branch, Aba, Abia State. Let me state that I have also duly examined all the pieces of affidavit evidence adduced by the parties in this respect and I do also agree with the position of the learned trial judge.
My position is further strengthened by the failure on the part of the 1st appellant to appropriately deny the respondents assertion that he was lured by the 1st appellants staff in order to facilitate his arrest. To properly drive home this point, I seek the indulgence of your Lordships to reproduce paragraphs 13, 16 and 17 of the respondents affidavit in support of his application which made reference to this fact. The contents of the said paragraphs 13, 16 and 17 are reproduced below as follows:
13. That while the applicant (respondent) was still negotiating with the 1st respondent (1st appellant) on how best the project could be completed and the defendants fund realized, the applicant on the 23/11/2009 received a phone call from one Esther Ucheagara, then Head of Credit Department but now Manager, Ikot-Ekpene Road Branch for and urgent information which the Manager Mrs. Lilian Ubendu, needed from him. (Brackets mine for clarification).
16. That as the applicant sat down, the two men got up and introduced themselves as policemen from the Special Fraud Unit of the Nigeria Police Force, Ikoyi, Lagos. They told applicant the (sic) he was under arrest for defrauding the 1st respondent of over N64,000.000.00.
17. The applicant was escorted from the 1st respondents from the 1st respondents (sic) Ikot Ekpene Branch Managers Office, Ogbor hill, Aba, into a waiting vehicle which was parked into 1st respondents Ikot Ekpene Road Branch premises and driven to the Central Police Station, Aba, where he was dumped in the cell among suspected kidnappers and other dangerous criminals.”
In denial and response to the depositions made by the respondent herein and reproduced above, the 1st appellant replied and it was deposed on its behalf as follows:
21. That paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 are false and the same averments are hereby denied. In further answer to the above paragraphs the 1st respondent states that it was not negotiating with the applicant and his company. The 1st respondent only drew the attention of the 1st respondent (sic) with respect to credit facility granted to them which the applicant had neglected to service.
22. That I am informed by Easther Ucheagara and I verily believe her that at no time did she call the applicant inviting him to the Ikot Ekpene branch of the 1st Respondent to be arrested by police men.
23. That the story contained in the above mentioned paragraphs were mere figment of the imagination of the applicant.
24. That the 1st respondent knows nothing about the applicants arrest or detention with the police.”
It can be observed from the reproduced paragraphs of the respondent and 1st appellants affidavit and counter-affidavit, respectively, that the weighty allegations made by the respondent were not by any means specifically denied by the 1st appellant. The only feeble attempt made by the 1st appellant to deny the allegation that its officer lured the respondent to be arrested was contained in paragraph 22 of its counter-affidavit. It should also be noted that the content of the said paragraph 22 of the 1st appellants counter-affidavit were information allegedly supplied by another-person completely different from the person who deposed to the counter affidavit. The paragraph did not meet the requirement of the Evidence Act, as it fails to specify the time and place the information was allegedly supplied. See Section 115 (4) of the Evidence Act, 2011.
In summary, I do agree with the learned trial judge that the respondent has copiously and convincingly established that he was unlawfully arrested and detained by the 2nd 5th appellants at the behest of the 1st appellant. Thus, Issue No. 1 is resolved against the appellants.
With regard to Issue No. 2 and Issue No. 3, I have given due considerations to the circumstances of the respondents unlawful arrest and detention, and do agree with the learned trial judge that the conduct of the appellants is reprehensible and should be condemned, especially considering the fact that it is now becoming prevalent for financial institutions and or money lenders to use their superior financial might and or connections to harass the perceived defaulting borrowers into liquidating their financial obligation, through the use of strong arms tactics and dehumanizing antics of security agencies. Thus, I am also of the firm viewpoint that the respondent has made out a proper case which is deserving of the award of exemplary damages.
Exemplary damages is in the nature of general damages with an attendant punitive damages thrown in for good measure. It is fixed high enough to be not only compensatory but also punitive. Basically, the primary object of an award of damages is to somewhat assuage and compensate the plaintiff for the harm or injury done to him. The secondary object is to punish the defendant for his intransigent conduct in inflicting that harm or injury. Achieving such secondary object can be by the award in addition to the normal compensatory damages; damages which go by various names such as aggravated damages, exemplary damages, punitive damages, vindictive damages and even retributory damages. It becomes invocable whenever the conduct of the defendant is considered/regarded as being sufficiently arbitrary, derogatory, oppressive, or outrageous, to warrant some form of additional sanction, such as where it portends/discloses malice, fraud, cruelty, insolence and flagrant disrespect/disregard for the law and the like. It is a sort of extra compensation given to the plaintiff for the harm or injury to his feelings and dignity. See the cases of Eliochin (Nig.) Ltd. & Ors. v. Victor Ngozi Mbadiwe (1986) 1 SC 99; Adeyemi Candide-Johnson v. Mrs. Esther Edigin (1990) 1 NWLR (Pt. 173) 316; Union Bank Plc. V. Nnoli (1990) 4 NWLR (Pt. 145) 530.
In respect of the quantum of damages, the sum of N5,000,000.00 (Five Million Naira) awarded by the learned trial judge is considered by me to be adequate and appropriate and I am not inclined to accede to the request by the learned appellants counsel to tamper or interfere with the same. Thus, Issue No. 2 and Issue No. 3 are also resolved against the appellants.
In the premise this appeal is found by me to be, utterly devoid and lacking in merit and it is accordingly dismissed. Therefore, the judgment of the lower Court delivered on the 2nd day of February, 2012 in Suit No. A/M25/2011 together with the consequential orders made therein are hereby affirmed by me. Costs in the sum of N50,000.00 is awarded against the appellants jointly and severally.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother MASSOUD A. OREDOLA JCA. I am in full agreement with the reasoning and conclusion therein.
I also resolve all the issues against the Appellants and affirm the judgment of the lower Court including the consequential orders. I abide by the order as to costs in the lead judgment.
Appearances:
Appellants counsel on notice but absent.For Appellant(s)
Ndukwe Ojeh Esq.For Respondent(s)
