HERITAGE BANK PLC v. S & S WIRELESS LIMITED & ORS
(2018)LCN/12114(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/L/871/2011
RATIO
EVIDENCE: AFFIDAVIT EVIDENCE
“The affidavit evidence deposed that the 2nd respondent lost his personal liberty for 29 days on account of the case. The facts as found by the Court below which were not challenged in the appeal were to the effect that the appellant instigated the 4th – 5th respondents to violate the fundamental rights of the 2nd – 3rd respondents in their bid to recover debt from the 1st – 3rd respondents for the appellant which weighted on the Court below in awarding the said damages vide the Supreme Court cases of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61, Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 1617) 92 to the effect that law enforcement agencies should not be used to infringe the fundamental rights of natural persons in the course of acting illegally as debt collectors and/or enforcers of contractual/civil obligations for other persons.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
FUNDAMENTAL RIGHT: INFRINGEMENT OF FUNDAMENTAL RIGHT
“It is trite that once an infringement of fundamental right is proved or established the award of compensation in form of monetary damages, whether claimed or not, follows as surely as sunrise in the Tropics (permit the expression).” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
HERITAGE BANK PLC Appellant(s)
AND
1. S & S WIRELESS LIMITED
2. MRS. TOPE OLUSOLA
3.MR. SEINDE OLUSOLA
4. INSPECTOR GENERAL OF POLICE
5. ASST. INSPECTOR GENERAL OF POLICE ZONE II
6. ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Judgment):
The appeal is from the judgment of the High Court of Lagos State (the Court below) whereby it awarded the sum of N275 Million in favour of the 1st – 3rd respondents against the appellant and the 4th – 5th respondents jointly and severally for breach of the 1st – 3rd respondents’ fundamental rights to personal liberty.
Sketchily stated, the case of the 1st – 3rd respondents as applicants at the Court below was that the 1st – 3rd respondents contracted a finance agreement with the appellant for an overdraft facility of N150 million to finance the purchase of sim-packs and recharge cards for resale and distribution. The 1st – 3rd respondents noticed over-charges and arbitrary increase in interest rates on the loan which their consultants examined and discovered to be N47,121,083.60k. The 1st – 3rd respondents tried amicable resolution of the issue with the appellant. The bid to settle the dispute in peace failed. The 1st – 3rd respondents sued the appellant at the High Court of Lagos State over the dispute.
In the meantime, the appellant petitioned the 4th and 5th respondents and later the 6th respondent over the dispute alleging criminality. The 2nd – 3rd respondents were arrested by the 4th – 6th respondents to answer the allegation. The 2nd respondent was detained for 29 days in the course of which the 2nd – 3rd respondents were forced to sign undertaking to pay the debt. Their property and assets were also confiscated. It led to the collapse of the business of the 1st respondent.
The Court below accepted the one-sided affidavit evidence of the 1st – 3rd respondents and found upon the uncontroverted and uncontradicted affidavit evidence that the arrest and detention of the 2nd – 3rd respondents was instigated by the appellant who acted in collaboration with the 4th – 5th respondents; upon which the Court below awarded N272 Million in favour of the 1st – 3rd respondents against the appellant and the 4th – 5th respondents jointly and severally for breach of their fundamental right to personal liberty.
The appellant as the 1st respondent at the Court below was not satisfied with the judgement and filed a notice of appeal with six (6) grounds of appeal. The original notice of appeal was with the leave of the Court amended and subsequently further amended with the leave of the Court. The further amended notice of appeal with six (6) grounds of appeal was filed on 20.02.17, but deemed as properly filed on 06.02.17.
The appellant filed a further amended brief of argument on 20.02.17 in which it was argued that the subject-matter of the dispute having been litigated upon by the parties at the Federal High Court which disposed of the case in a decision to that effect, the parties could not re-open the same dispute at the Court below, therefore the Court below was wrong in adjudicating over the dispute for the second time and its judgment should be declared a nullity and as disrespect to the earlier judgment in consequence citing in support the cases of General Aviation Services Ltd. v. Captain Thahal (2004) 10 NWLR (pt. 880) or 2004 MJSC vol.6 120 at 146, Odeleye v. Adegbanke (2008) WRN (vol.4) 44, Nigeria Intercontinental Merchant Bank Ltd. v. Union Bank Plc (2004) 4 SC (pt.1) 143, Peters v. Ashamu (1995) 4 NWLR (pt. 388) 206, Shugaba v. UBA (1997) 7 SC (no pagination), Mobil Oil (Nig.) Ltd. v. Assan (1995) NWLR (pt. 412) 129 at 143, Race Auto Supply Co. Ltd. v. Akib (2006) 13 NWLR (pt. 997) (no pagination), Umuana v. Okwuraiwe (1978) 6 ? 7 SC 1, Adigun v. Secretary Iwo Local Govt. (1999) 5 SC (pt.111) 1, Stirling Civil Nig. Ltd. v. Yahaya (2005) 4 SC 124, Dingyadi v. INEC (No. 2) (2010) 7 – 12 SC 105, Dingyadi v. INEC (No.3) (2011) 4 SC (pt.1) 1, Chukwuka v. Ezulike (1986) 5 NWLR (pt.45) 887.
The appellant argued in the further amended brief that after the Court below held in part of its judgment that the 1st respondent did not establish the claim of N1.9 billion turnover and profit of N50 million per day the Court below, none-the-less, awarded aggravated damages of N275 Million at the end of its judgment, when the Court below acknowledged in its judgment that the damages as claimed were not proved and that the 1st ? 3rd respondent failed to address it on the issue; and that the 4th – 5th respondents not being agents of the appellant, the Court below was wrong to treat them so in its judgment when it proceeded to lump them together in the award of aggravated damages, therefore the award of damages should be set aside citing in support the cases ofEbba v. Ogodo (1984) 15 SCNLR 372, Woluchem v. Gudi (1984) 5 SC 291, Olodo v. Josiah (2016) 12 SC (pt.111) 57, Incar Nigeria Limited v. Benson Transport Limited (1976) 3 SC 11, Odulaja v. Haddad (1973) 11 SC (no pagination), Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410, Amodu v. Amode (1990) NWLR (pt.150) 350, Fawehinmi v. I.G.P. and Ors. (2002) 5 SC (pt.1) 63, Allied Bank of Nigeria Ltd. v. Akubueze (1997) 6 NWLR (pt. 509) (no pagination), Chief Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (pt. 124) 1 at 30 – 31.
The appellant argued in the further amended brief that by inviting the Court below to entertain and interpret the previous judgment of the Federal High Court, a Court of co-ordinate jurisdiction with the Federal High Court, the exercise amounted to an abuse of the process of the Court and should be declared a nullity citing in support the cases of ARC. V. JDPC (2003) 2 – 3 SC 47 at 64, Dingyadi v. INEC (No. 3) (supra) at 72; upon which the appellant urged that the appeal should be allowed and Section 16 (now Section 15) of the Court of Appeal Act read with the case of Inakoju v. Adeleke (2007) 1 SC (pt.1) 1 be invoked to dismiss the action at the Court below for being an abuse of the process of the Court.
The 1st – 3rd respondents filed an amended brief of argument on 01.03.17 in which it was contended that the Federal High Court merely struck out the earlier case on a preliminary objection without deciding the dispute on the merit, therefore the Court below was not precluded from entertaining the action and entering judgment in it on the merit citing in support the cases of Ege Shipping and Trading Ind. Ltd. v. Tigris Corps (1999) 14 NWLR (pt. 634) 70 at 94, Reg. Trustees Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (pt. 189) 65 at 78 ? 80, Eronini v. Iheuko (1989) 2 NWLR (pt. 101) 46, Ojabo v. Inland Bank (1998) 11 NWLR (pt. 574) 433, Obasi Bros. Co. Ltd. v. M.B.A.S. Ltd. (2005) 5 NWLR (pt. 929) 117, 128.
The 1st – 3rd respondents contended in the amended brief that the appellant did not file counter affidavit and was thus deemed to have admitted the facts in support of the application as held by the Court below in part of its judgment which was not appealed against and subsists citing in support the cases of A.-G., Anambra State v. A.-G., Federation (2005) 9 NWLR (pt. 931) 572, Adamu v. Akukalia and Ors. (2005) 11 NWLR (pt. 936) 263.
The 1st – 3rd respondents contended that they established special, aggravated and exemplary damages in paragraph 21 of the affidavit in support of the application in page 150 of the record of appeal (the record) which was not challenged and that the Court below having found in its judgment in pages 157 – 158 of the record that the affidavit evidence sufficiently established ‘malice, fraud, cruelty, insolence, and flagrant disregard of law’ and also that the acts of the 1st, 4th and 5th respondents were ‘invidious and to be nothing but acts of terrorism against persons who were easy victims of their venom’ the Court below was entitled to award the said damages of N275 Million which should not be disturbed as the award of damages is not based on address of counsel but on the evidence showing breach of a right.
It was also contended that 1st – 3rd respondents’ learned counsel had addressed the Court below on damages in the written address in pages 60 of the record to the summarized effect that the 1st – 3rd respondents having established infringement of their fundamental right award of damages followed as a matter of course; and that the findings of fact and the award of damages having not been shown to be perverse should not be disturbed; and that the appeal be dismissed citing in support the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (pt. 1079) 223, Iniama v. Akpabio (2008) 17 NWLR (pt. 1116) 225, Ogunsakin v. Ajidara (2008) 6 NWLR (pt. 1082) 1 at 24, Ojo v. F.R.N. (2008) 11 NWLR (pt. 1099) 467 at 530, Amadi v. Chinda (2009) 10 NWLR (pt. 1148) 107 at 130, Mustapha v. C.A.C. (2009) 8 NWLR (pt. 1142) 35 at 51 – 52, Anyegwu v. Onuche (2009) 3 NWLR (pt. 1129) 659 at 674.
The reply brief filed on 22.03.17 emphasised that the Federal High Court (Molokwu, J.) having determined the case put an end to the litigation which could not be reviewed or set aside by a Court of co-ordinate jurisdiction as was done by the Court below which should have dismissed the case for being an abuse of the process of the Court citing in support the case of Dingyadi v. INEC (2010) 7 – 21 SC 105 at 133, Ezomo v. A.-G., Bendel State (1986) 4 NWLR (pt. 35) 273, Honda Place Ltd. v. Globe Motors (2005) 7 SC (pt. 3) 183, Iberu v. Ume-Ohana (1993) 2 NWLR (pt. 277) 510 at 520, Osunrinde v. Ajamogun (1992) 6 NWLR 156 at 184, Oloriegbe v. Omotesho (1993) 1 NWLR (pt. 270) 386 at 396, Igwe v. Kalu (2002) 14 NWLR (pt. 787) 435, Okafor v. A.-G., Anambra State (1991) 6 NWLR 659, Hoystead v. Commissioner of Taxation (1926) A.C. 155, Udo v. Obot (1989) 1 NWLR (pt. 95) 59, Dzungwe v. Gbishe (1985) 2 NWLR (pt. 8) 528, Ezenwa v. Kareem (1990) 3 NWLR (pt. 138) 258, Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126.
The reply brief contended that regardless of absence of counter affidavit the 1st – 3rd respondents were bound to allege and prove special damages with particularity which was not the case here; nor was a case for aggravated damages made as held by the Court below that the 1st – 3rd respondents’ learned counsel had not stated ‘why aggravated damages should be paid’ citing in support the cases ofB.B.B. v. ACB (2004) 2 NWLR (pt. 858) 521, Shell Petroleum Development Co. v. Tiebo VII (2005) 9 NWLR (pt. 931) 439, Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 5 SC (Reprint) 96, Rookes v. Bernard (1964) A.C. 1129 at 1223 ? 1224; and that the Court below having acted on wrong principle of law and made extremely high award of damages and thus arrived at an entirely erroneous estimate of damages the award should be set aside.
The reply brief concluded by urging for the appeal to be allowed and the reliefs sought in the notice of appeal, as amended, be granted.
The 4th – 6th respondents did not file brief of argument and were not represented at the hearing of the appeal, though reported to have been served hearing notice to that effect.
The ruling of the Federal High Court (Molokwu, J.) upholding the preliminary objection on ground of incompetence of the application is contained in pages 106 – 113 of the record. The Federal High Court did not decide the dispute on the merits in that application. When an application is held to be incompetent the consequential order is to strike out the application.
The ruling of the Federal High Court (Molokwu, J.) did not therefore put an end or finality to the litigation in that case as the application was not determined on the merit. See the illuminating judgment of the Supreme Court in the case of Sifax (Nig.) Limited and Ors. v. Migfo Nigeria Limited and Anor. (2018) 9 NWlR (pt. 1623) 138 at 182 ? 183 per the lead judgment prepared by Augie, J.S.C., thus :
“… a suit that is struck out has not been disposed of permanently … See also Owoh & Ors v. Asuk & Ors (2008) 16 NWLR (Pt. 1112) 113 at 129-130, paras. H-B wherein this Court per Mohammed, JSC (as he then was) observed as follows-
‘Striking out of the plaintiffs/appellants’ action does not finally determine the respective rights of the parties in the dispute placed before the trial Court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or right effectively remain pending and can be reviewed by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order'”
In other words, where a suit is struck out, the plaintiff has another opportunity to commence action after curing the deficiency, which resulted in the striking out of the suit – Alor v. Ngene (2007) 12 NWLR (Pt. 1062) 163 at 179 SC.
The application at the Court below was thus not an abuse of the process of the Court and was not caught by the doctrine of res judicata as the rights of the parties were not raised and finally determined and disposed of on the merit by the Federal High Court in that case vide Udo v. Obot (1989) 1 NWLR (pt. 95) 59 and the cases (supra) cited on the issue by the 1st – 3rd respondents.
The findings grounding the liability of the appellant were not challenged in any of the grounds of appeal in the further amended notice of appeal and/or any issue for determination in the appeal. The said findings/holding subsists and are on that basis conclusive and binding on the appellant. See Okotie-Eboh v. Manager (2004) 11- 12 S.C. 174 at 193 per the lead judgment prepared by Edozie, J.S.C., (as he then was, now of blessed memory) thus –
“It is trite law that a finding against which there is no appeal remains binding and conclusive: see Alakija v. Abdulai (1998) 5 S.C. 1; (1998) 6 NWLR (Pt. 552) 1 at p.24, Odiase v. Agho (1972) 3 S.C. (Reprint) 69; (1972) All NLR (Pt. 1) 170; Foreign Finance v. L.S.D.P.C. (1991) 1 NSCC 520, P.N. Udoh Trading CD. Ltd. v. Abere (2001) 5 S.C. (Pt. II) 64; (2001) 11 NWLR (Pt.723) 114 al 146, Yesufu v. Kupper International (1996) 5 NWLR (Pt.446) 17, Nwabueze v. Okoye (1988) 10-11 S.C. 77; (1988) 4 NWLR (Pt. 91) 664.”
The net result is that the said findings established that the 1st – 3rd respondents proved on their unchallenged credible affidavit evidence the violation of the 2nd – 3rd respondents’ fundamental rights to personal liberty, in particular.
It is trite that once an infringement of fundamental right is proved or established the award of compensation in form of monetary damages, whether claimed or not, follows as surely as sunrise in the Tropics (permit the expression).
There is nothing like categorisation and particularisation of damages in an action for the enforcement of fundamental rights vide Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (pt.1350) 225 at 254 per the lead judgment prepared by Muntaka-Coomassie, J.S.C., thus ”
‘The appellant’s 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 right has been violated. If this is proved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic of Nigeria, 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 that 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 matter brought under the enforcement of the Fundamental Human Rights procedure as submitted by the learned counsel to the 3rd respondent. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed.’
See also the judgment prepared by M.D. Muhammad J.S.C., in page 256 thereof thus –
“Appellant’s unlawful detention by the respondents constitute a breach of his right to personal liberty as guaranteed under Section 35 (1) of the Constitution. The same Constitution has provided under Section 35 (6) thus:-
“35 (6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.” (Italics supplied for emphasis).
From the foregoing, the appellant does not have to ask for compensation once he has established the fact of his being unlawfully detained, a fact which the Court below itself held he has. The compensation is automatic by the operation of the law. In any event, the record of appeal has clearly shown that appellant has specifically asked for a N2 Million Naira damages.
The lower Court’s decision that discountenanced the content of Section 35 (6) of the Constitution as well as appellant’s specific claim for the award of Two Million Naira damages arising from the breach of his constitutionally guaranteed right to liberty is manifestly perverse.
The award of damages in this case was fixed by the Court below at N275 Million. The damages were awarded to the 1st – 3rd respondents. The 1st respondent is an artificial person and would not be entitled to damages, as it does not have fundamental rights to vindicate and be compensated in damages therefor. The said award which included the 1st respondent was, therefore, based on erroneous principle of law as fundamental rights action cannot be maintained by an artificial person in respect of violation of the right to personal liberty vide First Bank Plc v. A.-G., Federation (2018) 7 NWLR (pt. 1617) 121.
The affidavit evidence deposed that the 2nd respondent lost his personal liberty for 29 days on account of the case. The facts as found by the Court below which were not challenged in the appeal were to the effect that the appellant instigated the 4th – 5th respondents to violate the fundamental rights of the 2nd – 3rd respondents in their bid to recover debt from the 1st – 3rd respondents for the appellant which weighted on the Court below in awarding the said damages vide the Supreme Court cases of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61, Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 1617) 92 to the effect that law enforcement agencies should not be used to infringe the fundamental rights of natural persons in the course of acting illegally as debt collectors and/or enforcers of contractual/civil obligations for other persons.
The point has to be made that when damages are awarded jointly and severally against defendants, it implies that any of the defendants or judgment debtors or all of them could be proceeded against by the judgment creditor for the fruits of the judgment, therefore the appellant could not have been right to maintain that the award was bad because it amounted to lumping the appellant and the 4th – 5th respondents together.
Based on what I have said thus far, I am of the considered opinion that the damages of N275 Milion are gargantuan or astronomically high.
I would allow the appeal on that ground only and interfere with the award which I hereby reduce to N10 Million for the 2nd – 3rd respondents against the appellant and the 4th – 5th respondents thus varying the award made by the Court below from N275 Million to the said N10 million accordingly. The appellant shall pay N300,000 costs to the 2nd ? 3rd respondents.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the decision which has just been rendered by my learned brother, Joseph Shagbaor Ikyegh, JCA. I am in entire agreement with, and do not desire to add to the reasoning and conclusion therein contained. I adopt the entire decision as mine.
Appearances:
1. The Appellant was unrepresented but served hearing notice.
For Appellant(s)
2. Mr. K. Izimah for the 1st ? 3rd Respondents.
3. The 4th Respondent, as well as the 6th Respondent, were served hearing notice but were unrepresented.
For Respondent(s)
