JIDE ARULOGUN v. COMMISSIONER OF POLICE, LAGOS STATE & ORS (2016)

JIDE ARULOGUN v. COMMISSIONER OF POLICE, LAGOS STATE & ORS

(2016)LCN/8358(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/L/893/13

RATIO

PRACTICE AND PROCEDURE: DUTY OF THE COURT; WHETHER IT IS THE DUTY OF THE COURT TO CONSIDER THE ISSUES ARISING BETWEEN THE PARTIES BEFORE DECIDING FOR OR AGAINST ANY SUCH PARTY
It is the essence of justice and fairness that cases are decided on its merits, and this imposes a corresponding duty on the Court to consider the issues arising between the parties before deciding for or against any such party – see Olufosoye V. Olorunfemi (1989) 1 NWLR (Pt 95) 26 SC. Simply stated, while it is the right of a Plaintiff to present a relief to the Court, it is the duty of the Court to determine it in the light of the law and the facts of the case – See N.P.A. Plc. V. Lotus Plastics Ltd. (2005) 19 NWLR (Pt.959) 158 SC. PER. AMINA ADAMU AUGIE, J.C.A.

REMEDIES: WHAT ‘REMEDY’ MEANS IN LAW IN RELATION TO THE MAXIM ”UBI JUS, IBI REMEDIUM”
“Remedy” in law means – “the manner a right is enforced or satisfied by a Court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual”- see legal-dictionary.thefreedictionary.com, and Bello v. AG, Oyo State (1986) 5 NWLR (Pt.45) 828, where Oputa, JSC, said –
“Holt, CJ in the now famous case of Ashby V. White (1703) postulated the principle that “if a Plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal”. The maxim “Ubi jus, ibi remedium is simply the Latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action”. In other words, it is a hollow concept to imagine a right without a remedy. The
law being an equal dispenser of justice leaves none without a remedy, and that is “Ubi jus, ibi remedium” [where there is right there is a remedy], which Courts are enjoined to apply, whether or not the wrong is remedial under a known head of tort or form of action – see Labode V. Otubu (2001) 7 NWLR (Pt.712) 256 and FBN Plc. v. Associated Motors co. Ltd. (1998) 10 NWLR (Pt.570) 447,where this Court per Nsofor, JCA, observed thus –
“I decline to formulate the issue – – in the terms either of contract or its breach or, in the terms of negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of Maitland: “Forms of action are buried but still they rule us from the grave”. But why the government of the living by the dead? Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their graves? And we have ever since moved, to and accepted assettled the principle: ubi jus ibiremedium. Therefore, provided there be a “dammum cum injuria?, a legal wrong, occasioned by or suffered in the ?1981 transaction” – – then “ex necessitate? there ought to
flow therefrom “a remedium? i.e. compensation even though it be minimal, Why? Because there was an injuria or legal wrong.” PER. AMINA ADAMU AUGIE, J.C.A.

DAMAGES: WHETHER THE APPELLANT IS ENTITLED TO DAMAGES AND WHAT MUST BE CONSIDERED IN FIXING AN AMOUNT FOR THE INFRINGMENT OF FUNDAMENTAL RIGHTS
The Appellant proved that he was unlawfully arrested and detained, and he is, therefore, entitled, by virtue of Section 35(6) of the Constitution, to compensation and apology – see Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt.1350) 225 SC, where the Supreme Court further held as follows-
“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 matters brought under the enforcement of fundamental rights procedure – – The procedure for the enforcement of the Fundamental Human Rights 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”.
So, fundamental rights matters are placed on a higher pedestal than the ordinary civil matter, in which a claim for damages resulting from a proven injury has to be made specifically and proved. In fixing an amount for the infringement of fundamental rights, the following factors, inter alia, will be taken into consideration – [see Ajayi v. A-G., Fed. (1998) 1 HRLRA 373] –
(a) The frequency of the type of violation in recent times;
(b) The continually deprecating value of the Naira;
(c) The motivation for the violation;
(d) The Status of the Applicant; and
(e) The undeserved embarrassment meted out to the Applicant including pecuniary losses. PER. AMINA ADAMU AUGIE, J.C.A.

DAMAGES: CONSIDERATION OF ECONOMIC REALITY OF THE COUNTRY IN THE AWARD OF DAMAGES TO COMPENSATE A VICTIM OF HUMAN RIGHT VIOLATION

It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country – see Onogoruwa V. I.G.P. (1993) 5 NWLR (Pt.193) 593, wherein it was held-
“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation, It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)]
In that case, Onogoruwa V. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows- The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin”. That was 1993; I wonder what he would say now about the Naira in 2016. PER. AMINA ADAMU AUGIE, J.C.A.

DAMAGES: THE EFFECT OF THE IMPOSITION OF COSTS ON BOTH PARTIES
It is settled that costs are not imposed as a punishment on the party that is in default nor are they given as a bonus to the party in victory see Onabanjo v. Ewetuga (1993) 4 NWLR (Pt.288) 445,wherein it was held –
– – While Courts of law are not allowed to award punitive costs, they are bound to award costs, which are commensurate with the circumstances of the case. Such costs will not be said to be punitive, Costs follow the event and as long as they follow the event and vindicate the out of pocket expenses of the party in victory, the adverse party cannot be heard to complain”. PER. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

JIDE ARULOGUN Appellant(s)

AND

1. COMMISSIONER OF POLICE, LAGOS STATE
2. D. P. O. POLICE STATE, ABULE EGBA, LAGOS STATE
3. I.P.O., MR. EZE, OKO-OBA POLICE STATE, ABULE-EGBA Respondent(s)

AMINA ADAMU AUGIE, J.C.A.(Delivering the Leading Judgment): This Appeal centers on compensation in matters relating to enforcement of Fundamental Rights. By an Application brought pursuant to Order II Rules 1, 2, 3,4 & 5 of the Fundamental Rights (Enforcement Procedure) Rules, and Sections 35(1), 44(1) and 46 of the 1999 Constitution, and under the Inherent jurisdiction of the Federal High Court, the Appellant prayed for-
(a) A Declaration that his arrest and detention by the 1st ? 3rd Respondents at Oko-Oba Police Station, Abule-Egba, Lagos State on the 3rd – 4th of March, 2013 is unlawful and unconstitutional.
(b) A Declaration that the seizure of his Tricycle with Plate Number QQ371LSR by the 1st – 3rd Respondents at the [said Station] is unlawful, illegal and unconstitutional,
(c) An Order directing the 1st – 3rd Respondents to release forthwith his Tricycle —
(d) An Order of perpetual injunction restraining [them] their servants, agents, privies etc’ from further harassing, intimidating, arresting and detaining [him] – – – .
(e) An order directing the 1st – 3rd Respondents jointly and severally

to pay him the sum of N15,000.000.00 as general damages for the intimidation, harassment and his unlawful arrest and detention.
(f) A sum of N8,000 every day for the deprivation of his use of the tricycle from 21/3/2013 until the Tricycle is released to him by the 1st – 3rd Respondents.
(g) A sum of N600,000 to be paid by the 1st – 3rd Respondent as cost of litigation – –

The Application is supported by a 38-Paragraph Affidavit and Written Address, and he averred as follows in Paragraph 29 – 33 of the said supporting Affidavit –
29. My income per day is between N8,000 to N10,000 from the ride of the Tricycle after removing other expenses like buying fuel and maintenance.
30. My least income per day is N8,000,00 if there is no market at all.
31a. I arrived at N8,000 because if there is no market at all, I embark on 40 trips per day both going and coming back,
31b. I normally carry three passengers at a go and each passenger pays N70.00
31c. The seizure of the said Tricycle by the men of Nigerian Police (especially the 3rd Respondent) at Oko-Oba Station, Abule-Egba, Lagos, has deprived me the use of the Tricycle and my

daily income.
31d. The compulsory seizure of the said Tricycle has seriously put me and my family in financial hardship.
32. Despite the financial difficulty, I have retained the service of Mr. Adeola Ojo Esq, since the matter has started at the Police Station, Oko-Oba, Abule-Egba, Lagos.
33. Mr. Adeola Ojo Esq, has given me his professional fees, which bill is N600,000.00 of which I made part payment of N50,000. (solicitor’s receipt attached as Exhibit B).

The Respondents refused and/or neglected to enter any appearance or file any process, and the Application was moved on 15/4/2013, with no input from them. In his judgment delivered on 2/5/2013, the learned trial Judge, Yunusa, J. of the Federal High Court. Lagos, concluded as follows (see page 67 of the Record) –
“…From the facts in the instant Suit, there was no justification for the arrest and detention of the Applicant and/or seizure of his Tricycle. This kind of detention is a detention without lawful excuse, Such an arrest was held to amount to false imprisonment by the Court of Appeal in Jaja v. COP (2011) 2 NWLR (Pt.1231) 375. Such unlawful arrest and detention amounts to

a violation of the personal liberty as enshrined in Section 35(1) of the Constitution – – – I find that it is inexcusable for the Respondents to detain the Applicant and also seize his tricycle. The detention is neither necessary nor incidental, it clearly lacked semblance of legal justification. Such arrest and detention is condemned. I therefore, declare the arrest and detention and seizure of Tricycle as unlawful. I hereby grant the orders sought in Prayers a., b., c., and d., as per the Reliefs sought in the Motion Paper”.

Dissatisfied with “part of the decision”, the Appellant appealed to this Court with a Notice of Appeal containing two Grounds of Appeal, and he distilled two Issues for Determination from the said Grounds of Appeal in his Brief of Argument prepared by Adeola Ojo, Esq., and Olusola Samuel, Esq. that is-
1. Whether from the totality of the Judgment of the Court below and in line with the provision of Section 35(6) of the 1999 Constitution (as amended), the trial Court has discretional power to refuse or fail to compensate or award damages to the Appellant
2. Whether failure or refusal of the trial judge in his Judgment dated

2/5/2013 to make a pronouncement or assess the Appellant’s prayers for damages as contained in Paragraph E, (f), and (g) of the Appellant’s application at the Lower Court amounts to denial of fair hearing.

Once again, the Respondents were served but refused and/or neglected to file a brief of Argument in this Court. The Appellant sought and was granted an Order of this Court to hear this Appeal on the Appellant’s Brief only – but that is not to say that the Appeal will not be considered on its merits.

In my view, the Issue for Determination is whether the Lower Court was right to disregard the Appellant’s reliefs (e), (f) and (g) in its judgment.

To start with, the Appellant referred us to Section 35(6) of the 1999 Constitution [as amended), which specifically provides as follows –
“Any person who is unlawfully arrested and detained SHALL be entitled to compensation and public apology from the appropriate authority or person and in this subsection, “the appropriate authority or person” means an authority or person specified by law”.

He argued that going by the word “shall” therein, the Lower Court must award compensation but the

amount to pay is dependent on his discretion – Abiodun v. A.-G. Fed. (2007) 15 NWLR (Pt.1057) 359 and Omoyinmi V. Ogunsiji (2008) 3 NWLR (Pt. 1075) 477; that its failure or refusal to grant relief (e.). is unjust and contrary to the above provision and principle of ubi jus ubi remedium – Bello V. A.-G., Oyo State (1985) 5 NWLR (Pt.45) 828; that what the Lower Court demonstrated is that he has a right to personal liberty by Section 35(1) of the Constitution but does not have a remedy, which is contrary to the principle of ubi jus ibi remedium; that its failure to grant his relief (e) is total denial of justice, a mockery of the Constitution, and a slap on his face; that the said relief [e) does not require strict proof, citing Rockonoh Prop. Co. Ltd. V. Nitel Plc. (2001)14 NWLR (Pt.733) 468, SBN V. CBN (2009) 6 NWLR (Pt.1137) 237, Nicon Hotels Ltd. V. NDC Ltd. (2007) 13 NWLR (Pt. 1051) 237; that the relief was based on unlawful arrest and detention, which resulted to intimidation, harassment, hardship and deprivation of his personal liberty; and that since it declared his arrest and detention unlawful, it was bound to award him the said relief – Rockonoh’s Case

(supra) and Igwe V. Ezeanochie (2010) 7 NWLR (Pt.1192) 61 cited.

He further submitted that that since the Respondents failed to appear or file any process, they have admitted the depositions in his Affidavit – R.T.N.A.C.H.P.N. V. M & H.U.N. (2008) 2 NWLR (Pt.1072) 575, H. S. Engr. Ltd. v. S. A. Yakubu (Nig.) Ltd. (2009) 10 NWLR (Pt.1149) 476, Nika Fishing Co. Ltd. V. Lavina Corp. (2008) 16 NWLR (Pt.1114) 509; that since he strictly and specifically proved Relief [f], and in view of the principle of law relating to unchallenged evidence as affirmed in Rewane v. Okotie-Eboh SCNLR 461 (sic), International Off Shore Construction Ltd. V. Shoreline Lifts Boats Nigeria Ltd. (2003) 16 NWLR (Pt.845) 157, the Lower Court’s failure to grant relief (f,) was total injustice to him and a determination to rob him of his entitlement; that its failure to grant Relief (g) “was totally injustice”; that costs are awarded on the ordinary principle of genuine and reasonable out of pocket expenses; and that normal counsel cost is usually awarded for a leader and one or two juniors. He further argued that the Lower Court’s failure to make any pronouncements on the said

Reliefs (e), (f) and (g) was a denial of his fair hearing – Uzuda V. Ebigah (2009) 15 NWLR (Pt.1163) 1; and that the Lower Court failed to exercise its judicial duty to assess the said Reliefs (e), (f) and (g), and even if it considered the arrest and detention as lawful and constitutional, it is under a judicial duty to assess all his reliefs – Iyere V. B.F.F.M. Ltd. (2008) 18 NWLR (Pt.1119) 300, Onwuka V. Omogui (1992) 3 NWLR (Pt. 230) 393. In summary, the Appellant urged this Court to allow this Appeal and grant the reliefs sought by doing the following –
1) Take full jurisdiction over part proceedings of which the trial Court failed to make pronouncement as if the proceeding had been instituted in this Court in accordance with Section 15 of the Court of Appeal Act.
2) Hold that the Lower Court was in error for failure to hold that he is entitled to damages.
3) Make an Order granting Reliefs (e), (f) and (g) of the said Application.

?My take on this Appeal is quite simple – the Appellant is right on all fronts, and the Appeal must be resolved in his favour. The Lower Court violated all known principles concerning its duty to deal with,

consider and pronounce on all material issues before it, not to mention the substance of this Appeal. It is the essence of justice and fairness that cases are decided on its merits, and this imposes a corresponding duty on the Court to consider the issues arising between the parties before deciding for or against any such party – see Olufosoye V. Olorunfemi (1989) 1 NWLR (Pt 95) 26 SC. Simply stated, while it is the right of a Plaintiff to present a relief to the Court, it is the duty of the Court to determine it in the light of the law and the facts of the case – See N.P.A. Plc. V. Lotus Plastics Ltd. (2005) 19 NWLR (Pt.959) 158 SC.

In this case, the Appellant prayed the Lower Court for seven reliefs – (a), (b), (c), (d), (e) (f), and, (g). The Lower Court specifically granted reliefs (a), (b), (c) and (d); it made no mention whatsoever to reliefs (e), (f) and (g), which is a grievous lapse in its judgment, and one that must be deprecated. Even more grievous, the Lower Court found as a fact that the Respondents trampled on the Appellant’s right to personal liberty and declared that the “arrest and detention and seizure of the Tricycle is unlawful”;

yet, it failed or refused to consider the reliefs that would provide a remedy for the wrong.

“Remedy” in law means – “the manner a right is enforced or satisfied by a Court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual”- see legal-dictionary.thefreedictionary.com, and Bello v. AG, Oyo State (1986) 5 NWLR (Pt.45) 828, where Oputa, JSC, said –
“Holt, CJ in the now famous case of Ashby V. White (1703) postulated the principle that “if a Plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal”. The maxim “Ubi jus, ibi remedium is simply the Latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action”.
In other words, it is a hollow concept to imagine a right without a remedy. The

law being an equal dispenser of justice leaves none without a remedy, and that is “Ubi jus, ibi remedium” [where there is right there is a remedy], which Courts are enjoined to apply, whether or not the wrong is remedial under a known head of tort or form of action – see Labode V. Otubu (2001) 7 NWLR (Pt.712) 256 and FBN Plc. v. Associated Motors co. Ltd. (1998) 10 NWLR (Pt.570) 447,where this Court per Nsofor, JCA, observed thus –
“I decline to formulate the issue – – in the terms either of contract or its breach or, in the terms of negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of Maitland: “Forms of action are buried but still they rule us from the grave”. But why the government of the living by the dead? Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their graves? And we have ever since moved, to and accepted assettled the principle: ubi jus ibiremedium. Therefore, provided there be a “dammum cum injuria?, a legal wrong, occasioned by or suffered in the ?1981 transaction” – – then “ex necessitate? there ought to

flow therefrom “a remedium? i.e. compensation even though it be minimal, Why? Because there was an injuria or legal wrong.”

In this case, the Lower Court’s failure to consider a remedy for the Appellant in the face of its decision that his arrest and detention was indeed unlawful, is compounded by the fact that Section 35 (6) of the Constitution provides that any person, who is unlawfully arrested and detained, shall be entitled to compensation and public apology from the appropriate authority or person.
?Thus, the Constitution that guaranteed the right provided a remedy, and the Lower Court’s failure to consider the Appellant’s reliefs to that end, is the height of injustice. What was the point of the Appellant’s presence at the Lower Court, if not to ventilate his grievance against the Respondents, and if they are adjudged wrong, to be granted a remedy for the said wrong? The remedy, in the form of compensation and public apology, is specifically provided for by the Constitution, and the Lower Court’s failure to consider the Appellant’s reliefs, touching on the remedy for the wrong found proved, is unconscionable, and “a mockery of the

Constitution”, as Appellant put it.

The Appellant proved that he was unlawfully arrested and detained, and he is, therefore, entitled, by virtue of Section 35(6) of the Constitution, to compensation and apology – see Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt.1350) 225 SC, where the Supreme Court further held as follows-
“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 matters brought under the enforcement of fundamental rights procedure – – The procedure for the enforcement of the Fundamental Human Rights 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”.
So, fundamental rights matters are placed on a higher pedestal than the ordinary civil matter, in which a claim for damages resulting from a proven injury has to be made specifically and

proved.

?In fixing an amount for the infringement of fundamental rights, the following factors, inter alia, will be taken into consideration – [see Ajayi v. A-G., Fed. (1998) 1 HRLRA 373] –
(a) The frequency of the type of violation in recent times;
(b) The continually deprecating value of the Naira;
(c) The motivation for the violation;
(d) The Status of the Applicant; and
(e) The undeserved embarrassment meted out to the Applicant including pecuniary losses.

In this case, the Appellant averred in Paragraphs 29-37 of his Affidavit that his daily income from the use of his Tricycle is between N8,000 to N10,000 after removing expenses like fuel and maintenance; that his least income is N8,000.00, and that the seizure of the Tricycle deprived him of its use and his daily income. The Respondents did not file a Counter-Affidavit, and the position of the law, as the Appellant rightly submitted, is that “affidavit evidence that is neither challenged nor debunked remains good and reliable evidence, which ought to be relied upon by a Court?’ ? see R.T.N.A.C.H.P.N. v. M & H.U.N. (supra), H.S. Engr. V. Yakubu (Nig.) Ltd,.

(supra), Nika Fishing V. Lavina Corp. (supra).

In the circumstances, and with unchallenged evidence to work with, this Court is in as good a position as the Lower Court to remedy the wrong, rather than remit the matter to the Lower Court for the purpose of doing so. The Appellant’s relief (e) is a claim for N15,000.000 as general damages for intimidation, harassment and his unlawful arrest and detention, but he did not provide any details or cogent materials to justify the amount claimed. Surely, he cannot claim N15m as damages, and expect that it will be given to him merely because the Respondents had not filed a Counter-Affidavit.

From the facts deposed to in his supporting Affidavit, armed robbers were operating in an area, and while he was trying to run away from them, his female passenger jumped out of his Tricycle, and sustained a fracture. He was arrested and detained overnight for 21 hours, and was released after he signed an undertaking to pay N10,000.00. When he failed to pay, his two sureties were arrested and the Respondents took away his Tricycle. His relief (f) is a claim for the sum of N8,000 every day from 21/3/2013 until his Tricycle is

released to him, and he did explain in his Affidavit that he arrived at N8,000.00 “because if there is no market at all, I embark on 40 trips per day both going and coming back”. This fact is deemed admitted by the Respondents, who had failed or refused to file any Counter- Affidavit.

he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)]
In that case, Onogoruwa V. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows-
?The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin”.
That was 1993; I wonder what he would say now about the Naira in 2016.

Relief (g) is for a sum of N600,000 to be paid by the Respondents as “cost of litigation the [Appellant] paid to his counsel”. The Appellant averred in paragraph 32 & 33 of his Affidavit that he retained the service of counsel, who gave him a bill of N600,000 as his professional fees, and that he made a part payment of N50,000 to him. He attached a receipt marked Exhibit B.

?It is settled that costs are not imposed as a punishment on the party that is in default nor are they given as a bonus to the party

in victory ? see Onabanjo v. Ewetuga (1993) 4 NWLR (Pt.288) 445,wherein it was held –
?- – While Courts of law are not allowed to award punitive costs, they are bound to award costs, which are commensurate with the circumstances of the case. Such costs will not be said to be punitive, Costs follow the event and as long as they follow the event and vindicate the out of pocket expenses of the party in victory, the adverse party cannot be heard to complain”.

The Appellant may not be awarded the full sum, but he is entitled to costs.

This Appeal succeeds, and is allowed. The Appellant is awarded the sum of N1,000,000 as compensation for his unlawful arrest and detention. The Respondents are also ordered to pay him the sum of N8,000 every day from 21/3/2013 until his Tricycle is released to him. He is also awarded the sum of N450,000 as cost of litigation, and N50,000 as costs generally.

?CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. A. AUGIE JCA. I agree with his Lordship’s reasoning and conclusions. It is surprising that the learned trial Judge

declared the arrest, detention and seizure of the appellant’s tricycle unlawful and granted the orders sought in his prayers a, b, c and d but said nothing about prayers e to g which dealt with damages and costs. It is a basic and elementary principle of the law that wherever there is a wrong there ought to be a remedy to redress the wrong, generally expressed in the Latin phrase Ubi Jus ibi remedium which we are all very familiar with. I also allow the appeal and abide by all the consequential orders made in the lead judgment of my learned brother Augie JCA.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance the very illuminating judgment just delivered by my learned brother, AUGIE, JCA. I agree with the reasoning and conclusion therein. I wish to add a few words of mine though.

?Section 35(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states:
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ?the appropriate authority or person?

means an authority or person specified by law.”

See Section 46 of the Constitution confer special jurisdiction on the Lower Court and that any person who alleges that any of his fundamental rights has been, is being or likely to be contravened in any state in relation to him may apply to the Court for redress.

Having made a clear finding of fact and law that there was no jurisdiction for the arrest and detention/seizure of the Appellant and his Tricycle, the learned, trial judge ought to have proceeded to consider the reliefs sought by the Appellant in respect damages to which he is entitled to. The use of the term ‘SHALL’ connotes mandatoriness and it breeds no discretion on the part of the Court.

The Preamble to the Fundamental Right Enforcement Rules, 2009 requires that for the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
An applicant seeking redress for the infringement of this fundamental right is entitled to, in addition to the relief as to declarative and injunctive, award of damages. It is therefore

safe to conclude that a finding that a fundamental right of a Nigerian citizen has been infringed upon attracts compensatory damages and in some cases, exemplary damages. See: ABIOLA v ABACHA [1998] 1 HRLRA 447; PUNCH (NIG) LTD v A-G FEDERATION [1998] 1 HRLRA 448.

The award of damages in case of a breach of fundamental right must be such as would constitute a fair balanced estimate of the injuries suffered by the Applicant as due to the Respondent’s unlawful conduct.

Viewed from all ramifications, the Appellant’s appeal is meritorious and it is hereby allowed. I abide by consequential orders made in the leading judgment.

Appearances

O. O. Samuel, Esq,with him,
Issa Adedokun, Esq.For Appellant

AND

Respondents not representedFor Respondent