MR. ASUQUO NYA NKAMENYIN & ANOR v. THE COMMISSIONER OF POLICE, CROSS RIVER STATE & ANOR
(2017)LCN/10311(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of July, 2017
CA/C/183/2012
RATIO
AWARD OF DAMAGES: WHAT THE COURTS ARE EXPECTED TO CONSIDER IN AWARDING DAMAGES
In awarding damages, Courts are expected to keep up with the times and economic trend in the county. In particular, Courts are to consider the prevailing decline in the purchasing power of the Naira over the past years. See ONWU V. NKA (1996) 7 NWLR (pt. 458) pg.1. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
EXEMPLARY DAMAGES: CIRCUMSTANCES IN WHICH EXEMPLARY DAMAGES ARE AWARDED
“Exemplary damages are usually awarded whenever a defendant’s conduct is sufficiently outrageous to merit punishment as when it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.” See ODOGU V. A.G. FED. (1996) 6 NWLR (pt.456) pg. 508.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
AWARD OF DAMAGES: THE PRIMARY AND SECONDARY OBJECT OF AWARDING DAMAGES
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him. The secondary object of award of damages is to punish the Defendant for his conduct in inflicting harm on a plaintiff. This secondary object can be achieved by awarding in addition to the normal compensatory damages, exemplary, punitive, vindictive or retributory damages.” See ELIOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (Pt. 14) pg. 47.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
AWARD OF DAMAGES: CIRCUMSTANCES IN WHICH AN APPELLATE COURT MAY ALTER THE AWARD OF DAMAGES
An Appellate Court may alter an award of damages where it is satisfied that the trial Court acted upon a wrong principle of law or where the damages awarded was based on an entirely erroneous estimate, or that the award is either manifestly too high or manifestly too low. See ODOGU V. A.G. FED. Supra. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. MR. ASUQUO NYA NKAMENYIN
2. MR. JAMES ASUQUO NYA Appellant(s)
AND
1. THE COMMISSIONER OF POLICE, CRS
2. THE NIGERIAN POLICE FORCE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The 1st & 2nd Respondents herein were the 3rd and 4th Respondents at the trial Court in the suit filed by the Appellants herein as Applicants. The trial Court ruled in favour of the Appellants against the 1st & 2nd Respondents herein and awarded the sum of Three Million, Five Hundred Thousand Naira (#3.5 Million) as damages against the 1st & 2nd Respondents.
Although the Ruling was in favour of the Appellants, they considered the damages awarded as inadequate and appealed against the damages awarded and failure by the trial Court to make an order directing the Respondents to release the body of the deceased, Mr. Nya Asuquo Nya to the Appellants’ family for burial.
SUMMARY OF FACTS:
The Appellants instituted this suit at the Federal High Court, Calabar, seeking for the following reliefs:
1. “A Declaration that the killing of Mr. Nya Asuquo Nya by the officers of the Respondents, is illegal, barbaric and unlawful.
2. A Declaration that the maltreatment of the Applicants by the Respondents in their bid to seek for redress is discourteous,
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discompassionate and unacceptable.
3. An Order on the Respondents to pay the Applicants #1B (One Billion Naira) only jointly and severally for the illegal and premature killing of Mr. Nya Asuquo Nya (29 years).
AND for such further order/s as this Honourable Court shall deem fit to make in the circumstances.”
(See pages 11-12 of the Records).
In a considered Ruling, the learned trial Judge C. J. Aneke agreed that the force used by the officers and men of the 1st & 2nd Respondents herein in suppressing the demonstration of workers for increased wages was unreasonable, unlawful, and unjustified in the circumstances of this case. He proceeded to award the sum of #3.5 Million (#3,500,000.00) as damages to the Appellants.
Much as the Appellants accepted the findings of fact, they also frowned at the failure of the trial Judge to order the release of the corpse of the deceased to his family for burial. This appeal is therefore predicated on the award of damages which the Appellants consider as inadequate as well as failure to make an order for the release of the body of the deceased to the Appellants.
?The Appellant’s counsel,
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Prof. Tony Ukam distilled two issues for determination as follows:
1. “Whether the #3.5 Million damages awarded by the trial Court against the 3rd & 4th Respondents was adequate in the circumstances.
2. Whether having regards to the pleadings and evidence adduced at the trial Court, the trial Court had jurisdiction to order the release of the body/remains of Mr. Nya Asuquo Nya (deceased) for burial.”
The Respondents failed to file a Respondents? brief despite been served with the Appellants’ Brief. On the 7th of June, 2017, this Court granted an application filed on the 26th of May, 2016 that this appeal be heard on the Appellants? brief alone.
The two issues formulated by learned counsel for the Appellants can conveniently be compressed into one straight forward issue thus:
“Whether on the facts and circumstances of this case the learned trial Judge was justified in awarding the sum of #3.5 Million as damages against the 1st & 2nd Respondents and failed to make an order releasing the corpse of the deceased Nya Asuquo Nya to his family for burial.”
Having agreed with the findings of the trial Court, the
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grievance of the Appellants are very straight forward and simple. Their grouse is hinged on the compensation/ damages awarded and failure by the trial Court to order the release of the corpse of the deceased Nya Asuquo Nya.
A reproduction of the order of the trial Judge at page 173 of the Records at this juncture is desirable. It states as follows:
“Accordingly, I make the following orders:
(1) A Declaration that the force used by the officers and men of the 3rd and 4th Respondents in suppressing the demonstration of the 1st Respondent’s workers for increased wages on the 15th day of February, 2010 resulting in the death of Mr. Nya Asuquo Nya is unreasonable, unlawful and unjustified in the circumstance of this case.
(2) Award of the sum of #3,500,000.00 (Three Million, Five Hundred Thousand Naira) being compensation for the excessive force used by the officers and men of the 3rd and 4th Respondents in containing the demonstration for the 1st and 2nd Respondents…?
The Ruling of the trial Court is therefore hinged on these basic facts, i.e. That the killing of the Appellants’ son/brother Nya Asuquo Nya by officers of the 1st
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and 2nd Respondents was unreasonable, unlawful and at the same time unjustified.
The learned trial Judge agreed with the case presented by the Appellants at the trial Court. That the deceased Nya Asuquo Nya’s death was untimely and traced to officers of the 1st and 2nd Respondents. The trial Court agreed that the untimely death of the said Nya Asuquo Nya was consequent upon the application of excessive force in quelling a civil unrest of workers of Kaiser Construction Co. Ltd.
Having made the above findings of fact, the next question that comes to mind is ”was the award of damages/compensation adequate considering the fact that the deceased was a young Graduate, gainfully employed and the bread winner of his family?”
In awarding damages, Courts are expected to keep up with the times and economic trend in the county. In particular, Courts are to consider the prevailing decline in the purchasing power of the Naira over the past years. See ONWU V. NKA (1996) 7 NWLR (pt. 458) pg.1.
“Exemplary damages are usually awarded whenever a defendant’s conduct is sufficiently outrageous to merit punishment as when it discloses malice, fraud, cruelty,
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insolence, flagrant disregard of the law and the like.”
See ODOGU V. A.G. FED. (1996) 6 NWLR (pt.456) pg. 508.
It is my humble but firm view that having found that officers of the 1st and 2nd Respondents were responsible for the untimely death of a young Graduate Nya Asuquo Nya and that the killing was unreasonable, unlawful and unjustified, the award of a paltry #3.5 Million for the death of a human being was most inadequate.
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him. The secondary object of award of damages is to punish the Defendant for his conduct in inflicting harm on a plaintiff. This secondary object can be achieved by awarding in addition to the normal compensatory damages, exemplary, punitive, vindictive or retributory damages.”
See ELIOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (Pt. 14) pg. 47.
An Appellate Court may alter an award of damages where it is satisfied that the trial Court acted upon a wrong principle of law or where the damages awarded was based on an entirely erroneous estimate, or that the award is either manifestly too high or manifestly too
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low.
See ODOGU V. A.G. FED. Supra.
It is trite that the Appellate Court is vested with the jurisdiction to assess proper damages and award same to the successful party without remitting the case back to the trial Court for that purpose. If for any reason the trial Court fails to perform this duty, the Appellate Court, in an appropriate situation, will assume that duty, and award damages it considers the claimant is entitled to. See INT. ILE INDUSTRY (NIG) LTD V. ADEREMI (1999) 8 NWLR (pt. 614) page 278.
On failure of the trial Judge to make an order releasing the corpse of the deceased to the family of the Appellants for burial, the affidavit in support of the motion sworn to by the 1st Appellant at pages 13-16 of the Records, clearly states that the Respondents killed the deceased and took custody of his body.
It is stated clearly that the Appellants made efforts to retrieve the corpse for burial, but the Respondents refused to release same, perhaps due to the pendency of this appeal.
Pages 11-12 of the Records contain the main reliefs of the Appellants. It is my humble but firm view that the fact that the Appellants did
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not specifically include the order for the release of the corpse of the deceased did not in any way strip the trial Court of jurisdiction to make an order for the release of the body of Nya Asuquo Nya to the family of the Appellants. No where in the entire proceedings did the Respondents deny being in custody of the body of the deceased. Having found that officers of the Respondents were responsible for the untimely death of the deceased Nya Asuquo Nya and that the killing was unlawful, unreasonable and unjustified.
Consequent upon these findings of fact, the order for the release of the corpse should naturally follow as a consequential order. That order is incidental arising from the judgment of the trial Court to give effect to the said judgment.
At page 12 of the Record of Appeal is the phrase;
“AND for such further order/s as this Honourable Court shall deem fit to make in the circumstances.”
That omnibus prayer clothed the trial Court with jurisdiction to justify an order releasing the corpse of the deceased to the Appellants for burial. It was therefore erroneous for the learned trial Judge to leave that consequential order
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which ordinarily should flow with the judgment in limbo.
In the circumstance, there is merit in this appeal. The sole issue is resolved against the Respondents and in favour of the Appellants. This appeal is meritorious and is hereby allowed.
The award of #3.5 Million (Three Million, Five Hundred Thousand Naira) as damages to the Appellants by G. J. Aneke in Suit No. FHC/CA/CS/M131/2010 is considered most inadequate In the circumstance and is accordingly set aside.
In its place, I award the sum of #50,000,000.00 (Fifty Million Naira) damages to the Appellants.
Consequently, the body of the deceased Nya Asuquo Nya in custody of the Respondents is to be released to the Appellant forthwith for burial.
I award One Hundred Thousand Naira (#100,000.00) as costs in favour of the Appellants.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the judgment just delivered by my learned brother, C. E. Nwosu-Iherne, JCA, in draft.
?I agree with the reasoning resolving the sole issue in favour of the Appellant. I too hold that this appeal has merit. It is hereby allowed and I abide by the consequential
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orders as made in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother NWOSU-IHEME, JCA and I totally endorse the reasoning and conclusions therein.
Human life is sacrosanct and must be placed on an elevated pedestal by all. When unjustifiably taken, the deprivation must be visited with the appropriate severity. The life taken here was in its prime and any award of compensation in respect thereof must demonstrate the necessary appreciation of the grim situation.
?For the more detailed reasons in the lead judgment, I equally find merit in this appeal and I accordingly allow it while adopting the consequential orders in the lead judgment as mine.
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Appearances:
Tony Ukam Esq. with him, Linus Mbe, M. Udoh, O. Okoi, N. Imala and Goodness Uwandu Esq.For Appellant(s)
Respondents’ Counsel Absent
For Respondent(s)
Appearances
Tony Ukam Esq. with him, Linus Mbe, M. Udoh, O. Okoi, N. Imala and Goodness Uwandu Esq.For Appellant
AND
Respondents’ Counsel AbsentFor Respondent
