FORTIS MICROFINANCE BANK v. AMAEFULA & ORS (2021)

FORTIS MICROFINANCE BANK v. AMAEFULA & ORS

(2021)LCN/14952(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 15, 2021

CA/A/261/2014

RATIO

EVIDENCE: EFFECT OF UNDENIED FACTS DEPOSED IN AN AFFIDAVIT

It settled that where facts deposed in an affidavit are not denied, the Court can rely on same to make findings. If there is no denial the burden of proof is light and no longer heavy. PER NIMPAR, J.C.A.

RELIEF: DUTY OF A PARTY SEEKING A DECLARATORY RELIEF

Agreed that a party seeking a declaratory relief has a duty to prove same by strong and convincing evidence because declaratory reliefs are not granted on mere admission or on the weakness or absence of defence. See AKANINWO & ORS V. NSIRIM & ORS (2008) LPELR-321(SC) wherein the apex held thus:
“…It is argued that declaratory are not granted on mere admission but after proper argument the parties. The English case of Metzger v. Department of Health and Social Security (1977) 3 ER 444 and other Nigerian cases are cited. In that case, Megarry, VC, said at page 451: “The Court does not make declarations just because the parties to litigation have chosen to admit something, The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are not declarations without argument; that is quite plain. Metzger has been applied in a number of Nigerian cases I am not comfortable with a general or blanket statement that a party cannot admit a declaratory relief and that the Court must go outside the admission to ask for inculpatory arguments, I will rather be more comfortable to distinguish between two types of declaratory reliefs one which applies to the whole world (in the sense of not restricted to a particular person or persons); for example a declaration that a particular statute or section of a statute is unconstitutional, null and void ab initio and a declaration of a right against a particular person in property, as in this appeal.” (DISSENTING) Per TOBI, J.S.C ( Pp. 71-72, para. E). PER NIMPAR, J.C.A.

PROCEDURE: NATURE OF FUNDAMENTAL RIGHTS PROCEDURE

Fundamental Rights procedure is in a class of its own and therefore, normal civil procedure rules do not apply, because it has specialized rules strictly applicable to its proceedings. Therefore affidavit evidence not refuted or denied will weigh against the party who does not dispute or deny same. PER NIMPAR, J.C.A.

CONTRACT: WHETHER A PARTY IS ALLOWED TO ENGAGE IN SELF HELP IN ISSUES OF BREACH OF CONTRACT

A party is not allowed to engage in self help when confronted with a breach of contract. See OMOYENI V. CBN & ORS (2015) LPELR-25789(CA) where the Court held as follows:
“It is a basic principle of law that however clear or well founded a party may consider his legal right, it will be unconscionable and absurd for him to take the law into his hand by engaging in an act of self help to assert his perceived right. Our Courts have gladly, decried such uncivilized acts. No Court should aid or assist illegality no matter the circumstance. The Supreme Court in Governor of Lagos State v Ojukwu (1986) 1 NWLR (Pt 18) 621, R 9-10 at page 633 condemned in strong terms that self help has no place in our civilized world as it is against the observance of rule of law in a democratic society as Court. Obaseki. JSC at p.636 put it succinctly thus –

“In the area where rule of law operates, the rule of self help by force is abandoned. Nigeria being one of the countries in the world even in the third world which proclaim loudly to follow the rule of law, there is no room for the rule of self help by force to operate,” Eso, JSC also stated, at p.634- “The essence of rule of law is that it should never operate under the rule of force or fear. To use force to effect an act and while under the marshal of that forcer seek the Court’s equity, is an attempt to infuse timidity into Court and operate a sabotage of the cherished rule of law. It must never be.” See Shinning Star Nig. Ltd. v AKS Steel Nig. Ltd (2011) 4 NWLR (Pt.1238) 596 at 636-637; CDC Ltd, v SCOA Ltd (2007) 6 NWLR (Pt 1030) 300 at 363; Calabar East Co-op v Ikot (1999) 4 NWLR (Pt. 638) 225 ratio 9 at 244; CCB (Nig) Ltd v Onwuchekwa (1998) 8 NWLR (Pt 562) 375 at 395; Sodipo v Lemminkainen (1985) 1 NWLR (Pt. 8) 547 at 557-558.” Per AKOMOLAFE-WILSON, J.C.A. (Pp. 24-25, paras. C-E) PER NIMPAR, J.C.A.

DAMAGES: DAMAGES IN REGARD TO BREACH OF FUNDAMENTAL RIGHTS OF A CITIZEN

Once there is a breach of the Fundamental Rights of a citizen, particularly with regards to damages, the law is settled. See UKPAI V. OMOREGIE & ORS (2019) LPELR-47206(CA) wherein the Court said:
“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 person’s 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). However, subject to certain derogations permitted by law, fundamental rights are sometimes considered to be above the ordinary laws of the land. The protection of these rights is enshrined in Chapter Four of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Constitution also makes provision as to the nature of remedy that would be readily available to a person whose rights have been breached under the said chapter. It is trite law that consideration must be given to the circumstances in which the Appellant was arrested and whether he was able to prove same. The Supreme Court in Jaja v. COP Rivers State (2012) LPELR-20621(SC), per Muntaka-Coomassie at Pg. 28-28, Para. F-D said as follows: “The claim is in connection with the breach of his fundamental rights to his liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained, i.e. that his fundamental rights has been violated. If this is proved, by virtue of the provisions of Section 35(6) of the Constitution, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of fundamental rights procedure the procedure for fundamental rights was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violations by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation ever if no specific amount is claimed.” Per OGUNWUMIJU, J.C.A. (as she he was).
Therefore it is settled that in Fundamental Rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicant’s Fundamental Rights. See OZIDE & ORS VS EWUZIE & ORS (2015) LPELR-24482 (CA); EJEFOR VS OKEKE (2000) 7 NWLR (PT 665); ANOGWIE & ORS VS ODOM & ORS (SUPRA); As also held by MBABA, JCA in SKYE V NJOKU & ORS (2016) LPELR-40447(CA). PER NIMPAR, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

FORTIS MICROFINANCE BANK PLC APPELANT(S)

And

IKECHUKWU AMAEFULA 2. ECONOMIC AND FINANCIAL CRIMES COMMISSION 3. TAHIR USMAN 4. INSPECTOR GENERAL OF POLICE 5. POLICE SERVICE COMMISSION RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the of the High Court of the Federal Capital Territory sitting in Abuja delivered by HON. JUSTICE U.A. INYANG on the 28th January, 2014 wherein the Court below awarded the sum of N2,100,000.00 (Two Million, One Hundred Thousand Naira Only) in favour of the 1st Respondent. Dissatisfied with the said decision, the Appellant filed a Notice of Appeal on the 7th February, 2014 donating 6 grounds of Appeal.

The facts leading to this appeal are amenable to brief summary, the 1st Respondent herein sued for the enforcement of his fundamental rights via its application dated 5th September, 2012 wherein he claimed declaratory and injunctive reliefs as well as damages arising from an alleged breach his fundamental rights by the Appellant, and the 2nd – 5th Respondents who denied any liability via their Counter Affidavits and Written Addresses filed in opposition to the 1st Respondent’s application. The trial Court granted all the reliefs sought by the 1st Respondent and awarded the sum of N2,000,000.00 only as damages jointly and severally against the

Appellant, 2nd and 3rd Respondent, thus the appeal.

The Appellant’s brief settled by MUSA ISIAKA, ESQ., is dated 23rd day of April, 2014 and filed on the 24th day of April, 2014 and deemed on the 20th October, 2020 and distilled 6 issues for determination as follows:
a. Whether the 1st Respondent has proved or established the violation of his fundament/ rights.
b. Whether the lower Court was right in granting all the reliefs claimed by the 1st Respondent and awarding the sum of N2,000,000.00 as damages.
c. Whether the lower Court was right in awarding the sum of N100,000.00 as cost of litigation when same was neither claimed nor proved in favour of the 1st Respondent.
d. Whether the proceedings and judgment of 28th January, 2014 are a nullity and a breach of the Appellant’s right to fair hearing on account of the failure of the lower Court to notify the Appellant of the date for delivery of judgment.
e. Whether the Appellant can, without any further confirmation, present for payment the cheques deposited with her as security for loans granted to the 1st Respondent.
f. Whether the Appellant can be held liable for the

alleged violation of the 1st Respondent’s rights when she merely lodged a complaint on issuance of dud cheques with the 2nd Respondent.

The 1st Respondent’s Amended Brief settled by DR. ALEX AKUNEBU, ESQ., is dated 13th October, 2020 and filed on the same day and deemed on the 20th October, 2020. It formulated 6 issues as follows:
a. Whether the 1st Respondent has proved the violation of his Fundamental Rights against the Appellant and the 2nd Respondent and the consequential entitlement to the relief of damages.
b. Whether the issue as to cost is properly raised.
c. Whether there was failure to notify the Appellant on the date for judgment.
d. Whether cheques deposited as security can be foreclosed and or cashed without due process.
e. Whether the Appellant has not actively violated the 1st Respondent’s Fundamental Rights.
f. Whether the 2nd Respondent EFCC its enabling statute is empowered to convert contractual matters between parties into a criminal matter or to become a debt recovery agent for the Appellant.

The Appellant in response to the 1st Respondents’ brief filed a Reply Brief dated 16th July, 2014 and

filed on the same day, deemed on the 16th January, 2020 and re-deemed 20th October, 2020.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that a party who seeks a relief from the Court must establish his entitlement to it by means of credible and admissible evidence. The burden of proof is upon such party because he who asserts must prove as held in SECTION 132(1&2), & 133(1) OF EVIDENCE ACT, 2011 and VANGUARD MEDIA LTD V. OLAFISOYE (2011) 14 NWLR (PT. 1267) 207-251. A party seeking declaratory reliefs must prove same by strong and convincing evidence because declaratory reliefs are not granted based on mere admission or on the weakness or absence of defence. Relying A. E. CONSULTING V. YOBE STATE GOVT. (2011) 1 NWLR (PT. 1228) 331-342; I.N.E.C. V. ATUMA (2013) 11 NWLR (PT. 1366) 494 and ONAH V. OKENWA (2010) 7 (PT. 1194) 512. The 1st Respondent never placed any cogent and verifiable evidence (in the form of pictures, reports, or other documents) before the Court to show that:
a. The cheques he presented to the Appellant never bounced or that his accounts were sufficiently funded or that took any step to enable the

Appellant to cash the cheque.
b. A named, verifiable or identifiable staff or agent of the Appellant and the 2nd – 5th Respondents visited his house.
c. The Appellant was involved in pointing out or identifying the 1st Respondent or his residence.
d. He was not invited by the 2nd Respondent because of the petition on issuance of dud cheque written against him by the Appellant.
e. He did not voluntarily visit the 2nd Respondent’s office and was allowed to return on the same day.
f. He made any payment in respect of the EFCC (2nd & 3rd Respondents).
g. He was harassed, humiliated, maltreated or arrested.
h. His family and dependants were either arrested or had their movement restricted.
i. His gate was sealed and that he suffered hardship there from.
j. His vehicle and gate was damaged when he allegedly forced his way out of his compound.
k. There was a medical report showing evidence of his wife’s pregnancy, shock etc.
l. He reported the alleged invasion of his to the police
m. Sonic buses were either detained or prevented. from operating by the Appellant or the 2nd – 5th Respondents respectively.

The Appellant submits that without proof of the above mentioned, the conclusion of the trial Judge that the 1st Respondent’s fundamental right were violated is surprising. The Appellant urge this Honourable Court to hold that the 1st Respondent has failed to convincingly prove that these rights were violated.

ISSUES TWO AND THREE
The Appellant submits that a Court of law has no jurisdiction to grant a relief not claimed or proved before it. The Respondent cannot become entitled to damages having failed to establish the violation of his rights since cost follows event and more so damages are not awarded in vacuum. The 1st Respondent never claimed nor proved the cost of litigation in his case before the lower Court yet the learned trial Judge benevolently awarded a token of N100,000.00. There is nothing on record to show any monetary claim for cost of litigation. Citing UNIJOS V. IKEGWUOHA (2013) 9 NWLR (PT. 1360) 478. An Appellate Court will usually interfere in the award of damages or cost where such is awarded without justification, jurisdiction or done arbitrarily. Relying on IMO CONCORDE HOTEL LTD V. ANYA(1992) 4 NWLR (PT. 234)

The findings and orders of the lower Court on damages and cost were made without jurisdiction and amounts to a nullity. See AMADU V. YANTUMAKI (2011) 9 NWLR (PT. 1251) 161; TONY ANTHONY (NIG) LTD V. N.D.I.C. (2011) 14 (PT. 1269) 39 and GOMWALK V. OKWOSA (1999) 1 NWLR (PT. 586) 225.The Appellant also submits that any claim for cost of litigation is in the class of special damages which the law requires that they must be specifically particularized and proved. The 1st Respondent failed to do so. Citing N.N.P.C. V. CLIFCO (NIG.) LTD (2011) 10 NWLR (PT. 1255) 209. The Courts of law are not permitted to decide cases based on mere speculations as held in ANIMASHAUN V. U.C.H. (1996) 10 NWLR (PT. 476) 65; ANI V. STATE (2009) 16 NWLR (PT. 1168) 443 and AGIP (NIG) LTD v. AGIP PETROLI INT’L (2010) 5 NWLR (PT. 1187) 348.ISSUE FOUR
Appellant contend the constitutionally guaranteed right of fair hearing cannot be sacrificed on the altar of speedy hearing as it is better to err on the side of caution as held GOV. EKITI STATE V. OSAYOMI (2005) 2 (PT. 909) 67 and ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PT. 1078) 465. The Appellant was not aware of

the date on which the trial Court delivered its judgment as no Hearing Notice of that date was served on the Appellant. Consequently, the 1st Respondent executed the judgment by attaching the Appellant’s vehicles. The Appellant filed for stay of execution and Notice of Appeal immediately she became aware of the judgment. The trial Court also failed to confirm whether the Appellant was served with hearing notice or not. See OMABUWA V. OWHOFATSHO (2006) 5 NWLR (PT. 972) 40-67; ENE V. ASIKPO (2010) 10 NWLR (PT. 1203) 477; M.F. KENT V. (W.A) V. MARTCHEM IND. LTD (2000) 8 NWLR (PT. 669) 459 and AKINRIMISI V. MAERSK (NIG) LTD (2013) 10 NWLR (PT. 1361) 73, ORDER 39 RULE 2 OF THE FCT HIGH COURT (CIVIL PROCEDURE) RULES, 2004.
ISSUE FIVE
The Appellant also contend that the 1st Respondent duly accepted the terms and conditions in the various Offer Letters via which the loans were awarded, under the security requirements for the loan, the customer and his guarantors are required to provide undated and postdated cheques to cover the loan sum (see Pages 62-72 of records). The Offer Letter did not state that the Appellant must obtain Court Order or confirmation

from 1st Respondent before presenting it for payment. The 1st Respondent defaulted in repayment, demand notices were communicated to him, the Appellant automatically became entitled to activate the cheques as stipulated in the Offer (see Pages 62-74 of records). The law is settled that parties are bound by the agreement they willing entered into. The letters constitute the only binding agreement or contract between the parties and the Court has a duty to enforce such valid agreement. The Appellant can therefore validly present the cheques for payment without further recourse to the 1st Respondent in line with the provision of their subsisting agreements. Citing ARTRA INDUSTRIES LTD V. NIGERIAN BANK FOR COMMERCE AND INDUSTRIES (1997) 1 NWLR (PT. 483) 574 and U.B.A. LTD V. PENNY MART LTD (1992) 5 NWLR (PT. 240) 228.

ISSUE SIX
The Appellant submits that the 1st Respondent issued post dated cheques to the Appellant which did not clear upon presentation to the bank and the only conclusion there form is that the 1st Respondent issued dud cheques with intent to defraud the Appellant after obtaining credit from the Appellant. Relying on ABEKE V. STATE

(2007) 9 NWLR (PT. 1040) 411. Thereafter, several demands by the Appellant to the 1st Respondent was issued and caused a petition to be written to the ECONOMIC AND FINANCIAL CRIMES COMMISSION against the 1st Respondent on the issued dud cheques. By virtue of Section 4 of the Police Act, LFN 1990 the investigation and detection of crime are the primary duties of the police. See also Section 7 (1a and 2) of EFCC (Establishment, etc) Act, 2004 and Section 1(1a and b) of the Dishonoured Cheques (Offence) Act, LFN 2004 which makes issuance of dud cheques a financial crime and the EFCC can investigate it.

The Appellant also submits that in the Appellant’s petition in pages 77-79 of record, was clearly a complaint against the 1st Respondent, his company (Sonic Global Resource Nigeria Ltd) and his guarantors (Tordue Umah and Nwanna C. Michael) on the basis that the repayment and guarantors cheques which the 1st Respondent deposited with the Appellant turned out to be dud cheques. The petition was not a request that the 2nd and 5th Respondents should assist her in recovering the outstanding loan. The petition is premised on a conspiracy to defraud the Appellant via

the issuance of dud cheques which is clearly a criminal offence. At the point of presentation of the check, it was returned and marked “DAR” which is glaring evidence that they were indeed dud cheques (See Pages 37, 76, 80 and 114 of record). 1st Respondent, his company and his guarantors on a 2 count charge of issuing dud cheques in Charge No: CR/50/12 before FCT High Court (See P. 115-117 of record).

The Appellant further submits that it is trite law that a complainant is not liable for the breach of another person’s fundamental right when all the person did was to merely lay a complaint to the police or other law enforcement agency such as the EFCC in the instant case. Relying ONAH V. OKENWA (2010) 7 NWLR (PT. 1194) 512; GBAJOR V. OGUNBUREGUI (1961) 1 ALL NLR 853 and JIM JAJA V. COP (2011) 2 (PT. 1231). The 1st Respondent has not discharged the onus on him to show that his alleged arrest, detention and prosecution were unjustified, unlawful and actively instigated by the Appellant. There is no evidence to show that the Appellant’s petition was written in bad faith or that the content were fabricated. See FAJEMIROKUN V. CB (CI) NIG LTD (2002) 10 NWLR

(PT. 774) 95 RATIO 1 and ONAGORUWA V. IGP (1991) 5 NWLR (PT. 195) 593 and ONAH V. OKENWA (SUPRA) @ 537. This being the position of law, the Appellant cannot be held to have breached the 1st Respondent’s fundamental rights when all she did was to report the 1st Respondent and others to the EFCC for issuance of dud cheques and other act tantamount to fraud. From the foregoing, the Appellant cannot be deemed to be a proper or necessary party to the suit before the lower Court as the onus lies on the 2nd and 3rd Respondents to justify the legality of the alleged arrest and detention of the 1st Respondent. The Appellant urged this Honourable to hold that the Appellant is not and cannot be liable under the circumstances.

The Appellant urged the Court to allow this appeal, resolve all the issues above in favour of the Appellant, set aside the judgment for being incompetent, null and void, unmeritorious and reached in clear breach of extant statutory and judicial authorities.

1ST RESPONDENT’S SUBMISSION
ISSUE ONE
The 1st Respondent submits that through his pleadings gave account how the Appellant acting through its staff and thugs invaded his

House at two instances and holding him and members of his family hostage and under restrictions for several hours in the process of the Appellant’s quest for debt recovery and which incidents were reported to the Police by the 1st Respondent through his Company’s lawyer. Also the undated cheques he deposited with Appellant as security was presented without his consent which the Appellant and 2nd Respondent admitted. The 2nd Respondent admitted inviting the 1st Respondent on the complaint of the Appellant for purported issuance of dud cheques and detained him for ten hours but the Appellant denied it but admitted sending its staff to the 1st Respondent with demand notices. Where facts in an application alleging infringement of Fundamental Rights is established, the onus is on the Respondent to justify the deprivation of the Applicant’s liberty as held in JIM-JAJA V. COP (2011) 2 NWLR (PT. 1231) 375. After admitting that the 1st Respondent was invited by the 2nd Respondent spurred by the Appellant’s complaint and detained for more than ten hours before he was granted bail, the onus was now on the Appellant and 2nd Respondent to justify the detention of the 1st

Respondent. See JIM JAJA V. C.O.P (SUPRA). The 1st Respondent detention was without just cause, as neither the Appellant nor the 2nd Respondent was able to show a result of preliminary inquiry to show that the cheques in question were not funded by the bank and getting its report on the subject and exhibiting same.

The 1st Respondent also submits that the transaction of the parties is strictly civil as the cheque deposited as security can only be foreclosed by due process, in fact the undated cheque can only be done with the consent of the drawer. Citing the case of MAJEKODUNMI & ANOR V. AFRICAN BANK LTD (2004) 2 ISLR 113 RATIO 6 AT P.119 and ABEKE V. STATE (2007) 3 SC (Pt. 1) 105. Failure of the Appellant and 2nd Respondent to justify the detention of the 1st Respondent made them liable jointly and severally for the infringement of the 1st Respondents rights to liberty and dignity of his person and made him entitled to damages as held in JIM JAJA V. C.O.P (SUPRA) and JACK V. UNIMAKURDI (2004) MJSC VOL. 8 P.173 RATIO 6. The case of JIM JAJA V. C.O.P (SUPRA) was commenced by a fundamental right application and the admission of the Respondent was

confirmatory of their liability which represents the situation of parties in the instant case. Unjustified detention no matter how slight is actionable. See the case of JIM JAJA V. C.O.P (SUPRA).

Continuing, the 1st Respondent further submits that in proven cases of infringement of fundamental right rights, the Courts are empowered to award compensation. See Section 35(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The 1st Respondent claimed not only compensation but exemplary damages to redress the oppressive conduct of the Appellant and the 2nd Respondent. See ODIBA V. MUEMUE (1999) 10 NWLR (PT. 622) 174. The 1st Respondent urged the Court to resolve this issue one in favour of the 1st Respondent.

ISSUE TWO
The 1st Respondent submits that the Appellant’s argument on award of cost by the Court below is incompetent for having been raised without leave of this Honourable Court. The 1st Respondent cited Section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to state that the decision of the lower Court as to cost cannot be appealed against without leave first sought and

obtained. Failure to obtained leave makes such argument liable to be struck out by the Court. Also, the grant of cost is at the discretion of the Court and it is given to the successful party as it follows event. The Appellant has not shown why a successful party is not entitled to cost or why the award is unreasonable. Relying on NWANWUNA V. NWAEBILI (2011) 4 NWLR (PT. 1237) P. 290 RATIOS 3 AND 4; OBAYAGBONA V. OBAZEE (1972) 62 SC 247; UBN LTD V. NWAOKOLO (1995) 6 (PT. 400) 127; OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1195) 63 and SHELL BP DEV. CO. V. PERE COLE (1978) 3 SC 183. The 1st Respondent urge the Court to resolve issue two in his favour.

ISSUE THREE
The 1st Respondent submits that the onus on the Appellant who contends that he was not notified of the date of judgment to prove so. The Appellant was present in Court through his Counsel when the case was adjourned for judgment including Counsel for the 1st and 2nd Respondents and on the day of the judgment for the Appellant chose to stay away ostensibly to raise the issue of his absence on appeal. The Appellant’s plea of denial of fair hearing for reason of absence on the date of judgment is unavailing.

Citing the case of M.F. KENT W.A. LTD V. MARTCHEM IND. LTD (2000) 8 NWLR (PT. 669) P. 459 RATIO 7 to submit that since the Appellant’s Counsel was aware of the hearing date, there is no need for a hearing notice to be issued. The 1st Respondent reproduced the facts of the case in M.F. KENT W.A. LTD V. MARTCHEM IND. LTD (supra). Also the 1st Respondent states that where hearing has been concluded and a judgment was adjourned indefinitely in the absence of party, it is not necessary to serve him a hearing notice. See the case of M.F. KENT W.A. LTD V. MARTCHEM IND. LTD (Supra). Continuing, the 1st Respondent states that the Appellant’s contention that judgment was delivered and executed without them knowing is misconceived as the rules of practices in the High Court of the Federal Capital Territory, the certificate of judgment must be served on parties to the action and in the instant case the certificate of judgment was served on the Appellant after the judgment before execution was contemplated.

Finally, the 1st Respondent urge this Honourable Court to resolve issue three in his favour and to hold that the Appellant was notified of the date of judgment.

ISSUE FOUR
The 1st Respondent submits that generally, Micro-finance Companies in the course of granting credit facilities usually demand for cheques as security for such loans and it remains a security whether real property or any other property. Where there is a loan repayment default by the Borrower, the guarantor will be called upon to redeemed the loan sum and where he fails, the lender will now resort to Court where the Borrower and Guarantor will be co-defendants, the lender would prove by evidence the indebtedness of the Borrower and upon judgment, the Lender will proceed to seek for an order of Court to foreclose the security and upon the grant of the order of foreclosure, the mortgaged property or security will be foreclosed, these steps are the time hallowed procedure for foreclosure of security in commercial and banking practice. See MAJEKODUNMI & ANOR V. AFRICAN BANK LTD (2004) 2 ISLR 11 Page 119.

Continuing, the 1st Respondent submits that the failure of the Appellant to follow due process constitute self-help which is illegal. The fact that the cheque is undated means that such date can only be affixed on the cheque by

the drawer himself or by his consent but the Appellant went on to affix a date on the postdated cheque deposited as security and hastily proceeded to present same in foreclosure of the security which criminalize a loan transaction and the law does not aid a wrong doer. The issue of indebtedness of the 1st Respondent is unproven as the 1st Respondent has asserted that the breach of the loan contract was induced by the Appellants staff who refused and neglected to report early to work to sell the bus tickets mandated by the contract of the parties to be sold by them resulting in consequential loss of business earnings. The 1st Respondent urge the Court to find that the cheques deposited as security can only be foreclosed by due process and to resolve this issue in his favour.

ISSUE FIVE
The 1st Respondent submits that the Appellant actively participated in the violation of the 1st Respondent’s fundamental right by using it’s staff and thugs to invade the 1st Respondent’s house and held him under restrictions for several hours on two occasions which violates his fundamental right. In the case JIM JAJA V. C.O.P (SUPRA) has similar facts where a party

wrote petition to the Police which was frivolous and the Court held that it amounts to violation of the personal liberty of the person so arrested and detained as stated in Section 35(1) of the 1999 Constitution. See also EDOSOMWAN V. OGBEYFUN (1983) 1 FNLR 1000; UBANI V. DIRECTOR SSS (1999) 11 NWLR (PT. 625) 129 and HOPKINS V. JAMES CROWE (1836) 111 ER 974 P.975. The Appellant and the 2nd Respondent are jointly and severally liable for the infringement of the fundamental rights of the 2nd Respondent, the Appellant can therefore not extricate itself from what it set in motion.

Continuing, the 1st Respondent submits that the allegation of issuance of dud cheque against the 1st Respondent has no preliminary investigation report tendered by the Appellant and the 1st Respondent to prima facie justify their incessant violation of his rights. See the case of ABEKE V. STATE (2007) 3 SC (PT. 1) 105 which is dissimilar with the instant case because the above case has no documentation of the transaction unlike the instant case, the cheques in Abeke’s case were dated but in this case it was undated which make this instant case of the purview of Abeke’s case.

The 1st Respondent urge the Court to resolve issue five in his favour.

ISSUE SIX
The 1st Respondent submits that the Appellant using the instrumentality of the 2nd Respondent (EFCC) to intimidate, harass and freeze the bank account of the 1st Respondent was simply an act carried out ultra-vires the law establishing the 2nd Respondent. The 2nd Respondent and all other sister security agencies have no business in enforcement of debt or settlement or recovery of civil debts for banks or anybody. The resort to the security agents by parties for recovery of debts outstanding under contractual relationship has been repeatedly rebuked by the Courts. He cited EFCC V. DIAMOND BANK PLC (2018) NWLR (PT. 1620) 61 SC.

The 1st Respondent urged this Honourable Court to dismiss this appeal for violation of his fundamental rights.

APPELLANT’S REPLY
The Appellant submits that any averment made by a party must be backed by cogent and verifiable evidence. The 1st Respondent made an allegation of invasion by unidentified staff and thugs who were not linked with the Appellant. He alleged that his unnamed company lawyer reported to the police but failed to

produce any police report. The Court cannot rely on mere speculations. See REMALO LTD V. NBN LTD (2003) 16 NWLR (PT. 846) 235. Allegation of commission of crime in civil proceedings must be proved beyond reasonable doubt and the burden is on the person as held in ATUCHUKWU V. ADINDU (2012) 6 NWLR (PT.1297) 534. Based on the loan agreement, the 1st Respondent’s consent is not required before the duly signed cheques, drawn in the Appellant’s favour, can be presented for payment. The issue of alleged late filing of Counter Affidavits is a fresh matter which the 1st Respondent cannot raise without following the proper procedure. The 1st Respondent has waived his right to complaint having filed Further and Better Affidavits to the said Counter Affidavits. The 2nd Respondent has stated that the 1st Respondent was merely invited for questioning and was never detained or restrained. The 1st Respondent also failed to specifically deny the averments in paragraph 7(a-d) of 2nd & 3rd Respondents’ Counter Affidavit relating to his invitation for issuing the cheques, referred to pages 28-30 and 94-45 of records. The law is clear that unchallenged facts in an affidavit

are deemed true and can be acted upon by the Court, citing MANA V. PDP (2012) 13 NWLR (PT.1218) 579.

Continuing, the Appellants submits that the case of JIM-JAJA V. COP (SUPRA) supports the Appellant’s case as steps were taken to prosecute the 1st Respondent for dud cheque and not loan. The 1st Respondent misconstrued the case of JIM-JAJA V. COP by seeking to cover his tracks under a case that does not involve the issuance of dud cheques. The 1st Respondent cited MAJEKODUNMI & ANOR V. AFRICAN BANK LTD and ABEKE V. STATE which are not relevant to his case. Cheques issued as collateral are not treated the same way with mortgaged real property. 1st Respondent argued that his account was well funded but never annexed any statement of account. Also the Appellant states that only proven case of infringement of rights deserves compensation but the 1st Respondent has not proved its case to be entitled to compensation. No oppressive conduct of the 2nd and 3rd Respondents was established to justify the award of exemplary damages. Assuming without conceding that 1st Respondent was detained, there is no evidence to show that he lost or would have earned

N2,000,000 (Two Million Naira) within that period. This appeal is not premised solely on cost but on points of law relating to awarding monetary sum not claimed or proved and also declaratory and injunctive reliefs.

The Appellant submits that after parties adopted their final written address on 17/11/13, the trial Court adjourned for judgment twice on 22/11/13 and 10/01/14 and on both days the trial Court did not sit and parties were informed that judgment date shall be communicated but judgment was delivered on 28/01/2014 without notice to the Appellant. Therefore, it is misleading for the 1st Respondent to argue that the Appellant was in Court on the day judgment was delivered. The 1st Respondent misconstrued the case of M.F. KENT (W.A.) LTD V. MARTCHEM IND. LTD (SUPRA) where the Court held that once a date of judgment is announced, there is no need for notice. But in the instant case, the first two adjourned dates were announced but the Appellant was not notify of the day judgment was delivered which is 28/01/2014. See M.F. KENT (W.A) LTD V. MARTCHEM IND. LTD (SUPRA) P.418. Continuing, the Appellant states that they were not served with any

certificate of judgment prior to execution and there is no proof of such service before the Court. It is safe to infer that the Appellant was kept in the dark as to date of delivery of judgment to aid the execution of same because it occasion great injustice and hardship upon the Appellant.

The Appellant contend that the case of MAJEKODUNMI & ANOR V. AFRICAN BANK LTD (SUPRA) is not relevant to the instant appeal. The cheques issued as collaterals are not subject to foreclosure order. The Loan Agreement (Offer Letters) permits the Appellant to activate the loan collaterals without recourse to the 1st Respondent in the case of default. There is nothing in the said Loan Agreement (Offer Letters) that requires the Appellant’s staff to sell bus tickets.

The Appellant further contend there is no evidence to show that Appellant invaded 1st Respondent’s home and held him under restriction on two occasions. There is no mention of the name or identity of any staff of the Appellant involved in the alleged invasion. The Appellant is a responsible corporate entity and does not operate by thugs. The Appellant’s petition was not spiteful or frivolous but on

suspicion of commission of crime and that does not amount to violation of rights. The case of ABEKE V. STATE (SUPRA) is not relevant to the instant appeal. There is no distinction between dated and undated cheques issued by the 1st Respondent because they were intended to be an instrument of payment at a future date or upon the occurrence of an event (such as default). Documentation is not an issue here. The case is quiet relevant because it deals with a loan transaction and a cheque was issued as evidence and security for the loan.

The Appellant urge the Court to discontinuance the arguments raised in the 1st Respondent’s Brief of Argument for being misconceived and unmeritorious.

RESOLUTION
After a careful consideration of the Notice of Appeal, the record of appeal and the briefs of learned Counsel for the parties, the Court is inclined to adopt issues formulated by the Appellant being the one with a complaint against the judgment appealed against.

This first issue challenges the finding of the trial Court that the Fundamental Rights of the 1st Respondent were breached. The Appellant contested the evidence adduced which it argued was

not strong enough to find for the 1st Respondent. The proceedings leading to this appeal was a Fundamental Rights Proceedings wherein the 1st Respondent claimed as follows:
a. A Declaration that the transaction that exists between the Applicant (1st Respondent) … and the 1st Respondent (The Appellant) is civil in nature giving no rise to any act of criminality to give rise to the arrest, attempt to arrest, intimidate, harassment, threat to arrest and undue humiliation of the Applicant.
b. A. Declaration that the sealing of the only gate which serves as the Applicant’s only entry and exit gate at No. 1 Madubuoku Close, Jabi, Abuja by the 1st Respondent thereby causing undue hardship on the Applicant’s family and his dependents without an order of Court is not justiciable under any law in Nigeria and consequently is a violation of Applicant’s right as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria 1999 as Amended.
c. A Declaration that the arrest, restriction of movement on the 28th … and 28th day of February, 2010 of the Applicant, Applicant’s family and dependants by the 2nd and 3rd Respondents acting

on the instructions of the 1st Respondent with its officers, servants, agents, Privies at the instance of the 1st Respondent in pursuit of a monetary which is purely a commercial transaction between the Applicant and the 1st Respondent and the Applicant’s arrest and constant threat of arrest is unconstitutional, illegal, unlawful and a flagrant breach of the Applicant’s fundamental right enshrined Sections 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria and Articles 4, 5 and 6 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria, 1990.
d. A Declaration that the arrest, restriction of movement of the Applicant on the 4th and 17th September, 2012 by the 2nd Respondent and further threat of arrest and detention by 2nd Respondent acting on the instructions of the 1st Respondent with its Officers, servants, agents and Privies at the instance of the 1st Respondent in pursuit of a monetary claim which is purely a commercial transaction between the Applicant and the Applicant’s arrest and constant threat of arrest is unconstitutional, illegal, unlawful and a flagrant

breach of the Applicant’s Fundamental Right enshrined in Section 34, 35 and 36 of the 1999 Constitution of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990.
e. A Declaration that the threat of further harassment and continued threat and restriction of movement of the Applicant by the 2nd Respondent, its agents, Officers at the instance of the 1st Respondent in pursuit of a monetary claim in a purely commercial transaction is unconstitutional, illegal, unlawful and a flagrant breach of the Applicant’s Fundamental Rights.
f. An Injunction restraining the Respondents, whether by themselves, their Agents, Officers, servants, Privies or otherwise however arresting, or in any manner infringing on the fundamental Rights of the Applicant.
g. A Declaration that the 2nd, 3rd, 4th and 5th Respondents are not a debt collection Agencies.
h. The sum of N5,000,000.00 (Five Million Naira only) as a compensation and/or exemplary and aggravated damages jointly and severally against the Respondents for unlawful violation of the Applicant’s Fundamental Rights.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Fundamentally, the claim is occasioned by the attempt to recover a bad debt through agencies of the State entrusted with criminal investigation. The Appellant here alleges it was a dud cheque case which is criminal in nature rather than a case of recovery of debt as the trial Court found. Without any mincing words, the Appellant initiated a process for the recovery of debt and arrested, restrained and restricted the 1st Respondent and his family by blocking his access and detention too.

The Appellant dwelt so much on how a declaration is proved. It settled that where facts deposed in an affidavit are not denied, the Court can rely on same to make findings. If there is no denial the burden of proof is light and no longer heavy. Agreed that a party seeking a declaratory relief has a duty to prove same by strong and convincing evidence because declaratory reliefs are not granted on mere admission or on the weakness or absence of defence. See AKANINWO & ORS V. NSIRIM & ORS (2008) LPELR-321(SC) wherein the apex held thus:
“…It is argued that declaratory are not granted on mere admission but after proper argument the parties. The English case

of Metzger v. Department of Health and Social Security (1977) 3 ER 444 and other Nigerian cases are cited. In that case, Megarry, VC, said at page 451: “The Court does not make declarations just because the parties to litigation have chosen to admit something, The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are not declarations without argument; that is quite plain. Metzger has been applied in a number of Nigerian cases I am not comfortable with a general or blanket statement that a party cannot admit a declaratory relief and that the Court must go outside the admission to ask for inculpatory arguments, I will rather be more comfortable to distinguish between two types of declaratory reliefs one which applies to the whole world (in the sense of not restricted to a particular person or persons); for example a declaration that a particular statute or section of a statute is unconstitutional, null and void ab initio and a declaration of a right against a particular person in property, as in this appeal.” (DISSENTING) Per TOBI, J.S.C ( Pp. 71-72, para. E).

The rule is not so sacrosanct when evidence in a matter is purely from affidavit evidence and particularly under fundamental rules, because the slightest breach offends the Applicant’s Constitutional Right. Fundamental Rights procedure is in a class of its own and therefore, normal civil procedure rules do not apply, because it has specialized rules strictly applicable to its proceedings. Therefore affidavit evidence not refuted or denied will weigh against the party who does not dispute or deny same. The trial Judge found that the facts enumerated in the affidavit in support of the Application was not disputed and were lucidly stated, they include invasion of his home, holding them hostage and detaining him.

There was the issue of a returned cheque which formed the basis of the alleged invitation by the 2nd Respondent. The Appellant made a bare denial of the facts without narrating its own side of the story except where they said their staff went to serve the 1st Respondent with a demand notice. The 2nd Respondent agreed that they invited the 1st Respondent and detained him for only 10 hours and that led the trial Court to find that the 2nd Respondent was not truthful

because the Court below had to order the release of the 1st Respondent from custody in the course of the proceedings. If 1st Respondent was not remanded in custody why the order for release and realizing that a Court does not make orders flippantly and in vain. The Appellant did not challenge that finding therefore the question as to whether the 1st Respondent was remanded by the Appellant and 2nd to 3rd Respondents is a concluded issues. This is in addition to the unchallenged affidavit evidence. The only duty the Court has to determine is whether the detention was lawful.

The facts before the trial Court disclosed that the matter started as a debt recovery, going by the Exhibits attached to the Application for enforcement of Fundamental Rights, Exhibits MFB 4A, MFB 4B and MFB 4C which are loan agreements. So, it was a lender borrower relationship. There was also the issue of undated cheques deposited with the Appellant which is also part of the agreement between the Appellant and 1st Respondent. The Appellant contends that the cheques were presented and returned unpaid thus a complaint to the 2nd Respondent. If it were so, why would the 1st Respondent

make payments through the 2nd Respondent towards satisfying the loan? The responsibility of the 2nd Respondent is simply to prosecute but it got entangled in recovery of money for the Appellant and that is where the contention that they were merely involved in a case of a dud cheques and not loan repayment cannot fly. In any case, as found by the trial Court, there was no application to prefer a charge against the 1st Respondent or an Investigation Report indicting the 1st Respondent Therefore, there is nothing before the trial Court to justify the fact that the 2nd Respondent was performing it statutory duty of dealing with financial crimes. Furthermore, how could an undated cheque, without any stated figure constitute a crime? The Appellant on its own volition inserted figures and dated the cheque that Drawers Attention was required was … stamped on it. And that was done without the knowledge of the 1st Respondent. As held by several authorities, the duty of the 2nd Respondent is not in anyway related to debt recovery. See OLUSEGUN & ANOR V. EFCC & ORS (2018) LPELR-45825(CA).
Once the agency which is for economic crimes derails into

civil transactions, it has gone outside its statutory powers, the 2nd Respondent by law has the following powers as stated in the case of KALU V. & FRN & ORS (2016) LPELR-40108(SC) wherein the apex Court held thus:
“Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to Court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the Constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law. See ABACHA V. FRN (2014) 6 NWLR (Pt.1402) 43 at 112, DARIYE V. FRN (2015) 2 SCM P.46 at 68. ATTORNEY-GENERAL OF ANAMBRA V. UBA (2005) 15 NWLR (Pt.947) 44 at 67.” Per GALADIMA, J.S.C (Pp. 15-16, D-B)
In the light of above, civil transactions are out of the way for the 2nd Respondent, it therefore breached its statutory powers to invite, arrest, investigate or detain the 1st Respondent herein.

Furthermore, the

invitation by the Appellant to the 2nd Respondent to get involved in a purely civil transaction which included the arrest and detention of the 1st Respondent breached the fundamental rights of the 1st Respondent and the findings of the trial Judge is unassailable. There must be due process in every commercial relationship. A party is not allowed to engage in self help when confronted with a breach of contract. See OMOYENI V. CBN & ORS (2015) LPELR-25789(CA) where the Court held as follows:
“It is a basic principle of law that however clear or well founded a party may consider his legal right, it will be unconscionable and absurd for him to take the law into his hand by engaging in an act of self help to assert his perceived right. Our Courts have gladly, decried such uncivilized acts. No Court should aid or assist illegality no matter the circumstance. The Supreme Court in Governor of Lagos State v Ojukwu (1986) 1 NWLR (Pt 18) 621, R 9-10 at page 633 condemned in strong terms that self help has no place in our civilized world as it is against the observance of rule of law in a democratic society as Court. Obaseki. JSC at p.636 put it succinctly thus –

Once there is a breach of the Fundamental Rights of a citizen, particularly with regards to damages, the law is settled. See UKPAI V. OMOREGIE & ORS (2019)

LPELR-47206(CA) wherein the Court said:
“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 person’s 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). However, subject to certain derogations permitted by law, fundamental rights are sometimes considered to be above the ordinary laws of the land. The protection of these rights is enshrined in Chapter Four of the 1999 Constitution of the Federal Republic of

Nigeria (as amended). The Constitution also makes provision as to the nature of remedy that would be readily available to a person whose rights have been breached under the said chapter. It is trite law that consideration must be given to the circumstances in which the Appellant was arrested and whether he was able to prove same. The Supreme Court in Jaja v. COP Rivers State (2012) LPELR-20621(SC), per Muntaka-Coomassie at Pg. 28-28, Para. F-D said as follows: “The claim is in connection with the breach of his fundamental rights to his liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained, i.e. that his fundamental rights has been violated. If this is proved, by virtue of the provisions of Section 35(6) of the Constitution, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of fundamental

rights procedure the procedure for fundamental rights was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violations by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation ever if no specific amount is claimed.” Per OGUNWUMIJU, J.C.A. (as she he was).
Therefore it is settled that in Fundamental Rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicant’s Fundamental Rights. See OZIDE & ORS VS EWUZIE & ORS (2015) LPELR-24482 (CA); EJEFOR VS OKEKE (2000) 7 NWLR (PT 665); ANOGWIE & ORS VS ODOM & ORS (SUPRA); As also held by MBABA, JCA in SKYE V NJOKU & ORS (2016) LPELR-40447(CA).

In the light of above, issue one is resolved against the Appellant.

Moving on to issue two and three where the Appellant challenges the award of damages and cost. Flowing from the resolution of issue one, award of damages when the breach of fundamental rights of a citizen has been established is a constitutional issue. As explained in the decision of UKPAI V. OMOREGIE (supra), 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.

On award of cost, the principle is that it follows events and it is at the discretion of the Judge. While it is true that a successful litigant should not be denied costs, it is firmly established that costs must follow the event but many at times, circumstances and for good reasons, the defeated party may not be damnified in costs…
See UBN LTD & AROR V. NWAOKOLO (1995) LPELR-3385(SC) where the apex Court held:
“…while it is true that a successful party should not be denied costs unless for good reasons, a defeated party ought not be damnified in costs for no cause or on

flimsy, capricious and unfounded grounds. See Obayagbona & Ors v. Obazee & Ors (1971-72) NSCC 383-386 and Akinbobola v. Plisson Fisko Ltd. (1991) 1 SCNJ 129; (1991) 1 NWLR (Pt. 167) 270. Costs, it must be borne in mind, are not awarded as punitive measures. See Rewane v. Okotie-Eboh (1960) 5 F.S.C. 200 at 206-207.” Per ONU, J.S.C. (P. 32, paras. D-E).
As a general principle therefore, it may be said that costs are at the discretion of the Court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, an Appellate Court is without power to interfere with such honest exercise of the Court’s discretion. See BONUM (NIG) LTD V IBE & ANOR (2019) LPELR-46442(CA) where OGAKWU, JCA had this to say:
“The position of the law is that costs follow event and a successful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270, Kawu, JSC stated: “The award of costs is of course, always at the discretion of the Court which

discretion must be exercised both judicially and judiciously… It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement…” The essence of costs is to compensate the successful party for part of the losses incurred in the litigation. Costs cannot cure all the financial losses sustained in the litigation. It is also not meant to be a bonus to the successful party, and it is not to be awarded on sentiments. The award of costs being a matter within the discretion of the trial Court, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs except where it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H. (NIGERIA) LIMITED vs. OKEFIANA (supra) and ERO vs. TINUBU (2012) LPELR (7869) 1. In GABARI vs. ILORI (2002) 14

NWLR (PT. 786) 78 at 103-104, Mohammed, JCA held as follows: “I shall however comment briefly on the complaint of the appellant on the N5,000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses. Unquestionably, the award of costs by the Court to the successful party falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercised judicially and judiciously.”
Like all judicial discretions, judicial in the sense that it must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8.
The cost awarded was not the cost of the litigation as the claim is in the realm of special damages which must be specially pleaded and particularized. See AJIGBOTOSHO V. RCC (2018) LPELR-44774(SC) wherein the apex Court held thus:
“To start with, special damages are such

damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly, For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See DUMEZ (NIG) LTD. VS OGBOLI (1972) 1 All NLR 241, TABER VS BASMA 14 WACA 140. In GONZEE (NIG) VS NERDC (2005) 13 NWLR (Pt. 943) at 639. This Court hew that:- “Strict proof in the context of special damages means that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. See OSHINJINRIN VS. ELIAS (1970) 1 All 153, DUMEZ (NIG) LTD VS. OGBOLI (1972) 1 All NLR 241. There is a distinction between special damages

and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court. See:- IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (pt. 166) 136, ESEIGBE VS AGHOLOR (1993) 9 NWLR (pt.316) 128 BADMUS VS ABEGUNDE (1999) 11 NWLR (pt. 627) 493. This Court however, in XTOUDOS SERVICES NIG. LTD VS TAISEI (W.A) LIMITED (2006) 15 NWLR (pt. 1003) at 537 on how to plead and prove special damages held as follows:- “Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage, The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage

of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, there was no single paragraph in the statement of claim where the Appellants specifically pleaded facts with particulars in support of their claim for special damages, and also for general damages. As a result, the subject matter of the Appellants’ alternative relief for special and general damages for breach of contract was neither pleaded nor proved to justify being awarded by the trial Court, B.E.O.O. INDUSTRIES NIG. LTD. VS MADUAKOH (1975) 12 SC 91 referred to (Pg. 551, pacas. B-E).” From the foregoing, special damages be awarded if strictly proved and for this, the Appellant in this case ought to have gone beyond stating the estimate of the amount it will cost him to repair the damaged road and rehabilitate the damage done to the parcel of land.” Per BAGE, J.S.C (Pp. 9-11, paras. A-E).
The cost awarded was to a successful party and as allowed. …It is a misconception to equate the cost that follows event with the cost of prosecuting the claim. All the authorities cited in support of the award

cost which is not the cost that is generally awarded to the successful are irrelevant and inapplicable. Here too, I resolve these issues against the Appellant.

Issue four contends that the Appellant was not notified of the date of judgment and therefore, the judgment is a nullity. Undoubtedly, parties to a matter after hearing should be notified of the judgment date particularly where the Court did not sit on the date earlier fixed for judgment. It is so fundamental to give equal opportunities to all parties in the matter. The judgment was delivered on 28/1/2014 having been previously adjourned to 22/11/2013 for judgment. The delivery date of 28/1/2014 was not known to the Appellant. This is a breach, however, it is not enough to set aside the judgment because at that stage, parties had nothing more to urge the Court, their written addresses having been filed and adopted. Such judgment can only be set aside only when the party complaining has alleged and proved that it occasioned a miscarriage of justice. That is the failure to be served with a hearing notice for judgment simpliciter. In this case, the Appellant is simply saying it was not served and

therefore there was a breach of fair hearing. At that stage parties have already been heard with regards to the substantive claim. The only aspect worthy of attention is the allegation that it only became aware of the judgment at the point of execution. It is trite that no judgment is executed without following due process which includes serving the judgment debtor with the certificate of judgment and relevant process before execution. If the Appellant desired to challenge the execution, it had the right to do so without hindrance and execution is a different matter entirely. The authorities cited were all on the failure to serve a party hearing notice during trial. I agree with the opinion of SALAMI, JCA (AS HE THEN WAS) IN M.F. KENT (W.A.) LTD V MARTCHEM IND. LTD (2000) NWLR (Pt. 669) 459 at 471 wherein he emphasized on the importance of serving hearing notice to parties for judgment but did not say any judgment delivered when one party was not served with a hearing notice is a nullity. The party must go further to establish the miscarriage of justice occasioned by such failure and none was established here. Flowing from above, I resolve this issue against the Appellant.

The Appellant quoted 3 paragraphs of the agreement between Appellant and 1st Respondent which gives them authority to call in the loan in case of a default. I have read the paragraphs and indeed it provides for steps the Appellant can take to realize its money. Just like Appellant argued that there is nowhere stated in the agreement where the Appellant must seek Court’s approval to pay in the undated and without figure cheques presented to secure the loan, there is also no provision giving the Appellant the mandate to date it, fill in figure on the blank cheque and present same to the bank for payment. In doing so, it would be the act of the Appellant and not the 1st Respondent. In calling in the loan, the Appellant should start by writing a demand letter to the 1st Respondent to put him on notice. I agree that demand letters were sent in this case. Doing so will also ensure that the account is funded to satisfy the figure on the demand letter, otherwise, the allegation that the cheque bounced cannot be the fault of the 1st Respondent. Parties are bound by the agreement they entered into. See AMINU ISHOLA INVESTMENT LTD V. AFRIBANK NIG PLC

(2013) LPELR-20624 (SC), the Court held as follows:
“Parties are bound by the terms of an agreement freely entered into by them and the duty of a trial Court is simply to give effect to that agreement freely entered into by the parties and not to make a new agreement for them. This is an age old legal principle – a notorious one for that matter and there is a plethora of case law on that subject matter. See AFROTEC TECHNICAL SERVICES (NIG) LTD V. MIA & SONS LTD & ANOR (2000) 15 NWLR (PART 692) 730; (2000) 12 SC (Pt. 11) 1; (2000) ALL NLR 533; BOOKSHOP HOUSE LTD V. STANLEY CONSULTANT LTD (1986) NWLR (PART 26) 87 at 97.” Per ALAGOA, J.S.C ( Pp. 30-31, paras. F-C)

Assuming the Appellant could present the cheques for payment without notice to the 1st Respondent and they are returned unpaid, is the Appellant going to pursue the returned cheque or the repayment of the loan? In recovering the loan, the Appellant must go through the civil procedure route and not the criminal flag it tried to throw up here. The EFCC’s statutory powers has nothing to do with recovery of debt and in pursuing the returned cheque, payment of the value on the cheque is of no

moment. The trial Judge found that the fact of arraigning the 1st Respondent was not established and there was no appeal against that finding. Having not appealed, the Appellant cannot bring up the issue. See… (My Lord, I redraft it to statement below because I couldn’t get any case on the above). Having not raised it in his grounds of appealed, the Appellant cannot bring up the issue. See LABOUR PARTY V. INEC (2011) LPELR-4416(CA) wherein the Court held as follows:
“There is no doubt that this Court is incompetent to consider any issue not derived from ANY ground of appeal. See PRINCE BENJAMINE ADENIYI ALADEYELU V. MILITARY ADMIN EKITI STATE (2007) 5 SCNJ 1; (2007) 14 NWLR Pt. 1055 Pg. 619. Per OGUNWUMIJU, J.C.A (Pp. 16-18, paras. F-C).”

The principal claim being debt recovery, the Appellant erred in getting the 2nd Respondent involved with the debt recovery before proceeding on the ancillary complainant that a cheque was returned unpaid and thus a criminal offence has been committed. The two processes are different and cannot be mixed. It is the mixture that created the problem for the Appellant. The 2nd Respondent should also stick to

its core mandate to avoid incurring damages where they have no business to intervene. Here too, I resolve issue 5 against the Appellant.

On issue 6, the Appellant is missing the point. A mere criminal complaint cannot inure liability in breach of fundamental right. The main issue in this appeal is the recovery of debt and not a mere criminal complaint against the 1st Respondent, The 2nd Respondent exceeded the criminal complaint and became agents for debts recovery. Thus lies the problem. They have no such powers.
The Appellant cannot claim that it did not invite the 2nd Respondent to join in debt recovery. The issue of dud cheque is incidental and principal to the issue at stake. The steps taken by the 2nd Respondent exceeded their powers to investigate and prosecute for financial crimes. Resort to use of security agents for debt recovery has been roundly condemned by Superior Courts. See EFCC V. DIAMOND BANK PLC & ORS (2018) LPELR- 44217(SC), the Apex Court;
“What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation,

preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies.” … “We have stated repeatedly that the police (or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commissions (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of doing lawful duties. See the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (pt.677)653 Per Bagel JSC (Pp. 25, paras. E-F).
I resolve this issue against the Appellant.

Having resolved all issues against the Appellant, the appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on the 28th January, 2014 is hereby affirmed. I make no order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I had the benefit of reading in draft the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree fully with the reasoning and the conclusion that the appeal lacks merit. The appeal is accordingly dismissed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree with the reasoning and conclusion reached therein. I therefore dismiss the appeal. I also affirm the judgment of the trial Court delivered on the 28th January, 2014.
I make no order as to costs.

Appearances:

MUSA, ESQ. For Appellant(s)

ALEX AKUNEBI, ESQ., with him, PETER LONGIMUS, ESQ. – for 1st Respondent For Respondent(s)