MR. PAULINUS OKAFOR & ANOR v. THE ASSISTANT INSPECTOR GENERAL OF POLICE AIG ZONE II ONIKAN & ORS
(2019)LCN/12549(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/332/2018
RATIO
DAMAGES: WHO CLAIMS DAMAGES
“See also Allied Bank of Nig. Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374: Ezeani & Ors vs. Ejidike (1964) LPELR-25144 (SC). In G.K.F. Investment Nig. Ltd vs. Nigeria Telecommunication Plc. NSCQR Vol. 39 2009 page 426 @ 459, I.F. Ogbuagu JSC held:
‘Exemplary, punitive, vindictive or aggravated damages where claimed, are usually awarded, whenever the defendant or defendants’ conduct, is sufficiently, outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law and the like.'”PER TOBI EBIOWEI, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MR. PAULINUS OKAFOR
2. A. C. PUMA INVESTMENT COMPANY LTD Appellant(s)
AND
1. THE ASSISTANT INSPECTOR GENERAL OF POLICE AIG ZONE II ONIKAN
2. THE COMMISSIONER OF POLICE
3. THE AREA COMMANDER AREA E, FESTAC TOWN LAGOS
4. MR. OBINNA E. EZEM
5. ECO BANK NIGERIA PLC Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the decision of the Federal High Court, Lagos Division in Suit No: FHC/L/CS/1738/15 delivered by Hon. Justice R.M. Aikawa. The facts leading to this appeal is that the Appellants who were Applicants in the lower Court instituted an action for the enforcement of their Fundamental Right based on the arrest and detention of the 1st Appellant who is the Managing Director of the 2nd Appellant by the 1st-3rd Respondents on the allegation that it was instigated by the 4th & 5th Respondents. The Appellant’s claim in the lower Court is as contained in pages 1-3 of the record reproduced by the lower Court in pages 107-111 of the record of appeal.
(a) A DECLARATION that the forceful, illegal, unlawful and uncivilized arrest without warrant, detention, humiliation, torture and brutalization of the 1st Applicant’s Managing Director of the 2nd Applicant by the officers, operatives and men under the Command and directives of the 1st – 3rd Respondents at the criminal and unwarranted mastermind and fiendish instigation of the 4th and 5th Respondents is a gross, violent, barbaric, brute, flagrant and unmitigated violation of the Applicants rights to dignity of human person personal liberty, fair hearing and freedom of movement guaranteed and safeguarded under Sections 34, 35, 36, and 41 of the Constitution of the Federal Republic of Nigeria 1999 and under Articles 3,4,5,6,7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act CAP A9 Laws of the Federation of Nigeria 2004.
(b) A DECLARATION that the forceful illegal and unwarranted arrest without warrant, torture and unlawful detention of the 1st Applicant’s Managing Director of the 2nd Applicant from the 19th day of October, 2015 to the 21st day of October, 2015 and his subsequent threat of further arrest and detention by the men, operatives and officers under the command of the 1st – 3rd Respondents at the continued, selfish and unceasing instigation and promptings of the 4th and 5th Respondents without any formal charge against him amounts to a gross violation of the Applicant’s rights to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act CAP A9, Laws of the Federation of Nigeria 2004.
(C) A DECLARATION that the continued and unabated harassment, intimidation and threat of further arrest and illegal detention of the 1st Applicant’s Managing Director of the 2nd Applicant by the men, operatives and officers under the command/commission of the 1st – 3rd Respondents, on an entirely commercial transaction between the Applicants and the 4th and 5th Respondents corporate entity at the continued instigation and sustained mastermind of the 4th and 5th Respondent officials amounts to a gross violation of the Applicants right to personal liberty, fair hearing and freedom of movement as guaranteed under Sections 34, 35, 36, and 41 of the Constitution of the Federal Republic of Nigeria 1999 and under Articles 3, 7, and 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. CAP. A9, Laws of the Federation of Nigeria 2004.
(d) A DECLARATION that the forceful, illegal invasion, unwarranted breaking into, entry and vandalization without an order of any Court of the Applicants shops at Zone D Block 8 Shop 21 ASPAMDA Lagos Badagry Expressway on the 13/10/15, 19/10/15 and 22/10/15 by the men operatives and officers under the command of the 1st – 3rd Respondents at the continued selfish and unceasing instigation and promptings of the 4th and 5th Respondents when Suit No: LD/1462/2010. A. C. PUMA INVESTMENT CO. LTD AND ANOR VS. OCEANIC BANK INTERNATIONAL LTD (Now the 5th Respondent herein) on the commercial subject matter is pending before the Lagos State High Court amounts to a gross violation of the Applicants rights to fair hearing and right of ownership of private property donated him and as guaranteed under Section 36 and 44 of the 1999 Constitution of the Federal Republic of Nigeria and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. CAP. A9 Laws of the Federation of Nigeria 2004
(e) The sum of N100,000,000 (One Hundred Million Naira) being exemplary damages against the Respondents jointly and severally for the unlawful arrest, detention, humiliation of the 1st Applicant unlawful breaking into an vandalization of the Applicants shop at Zone D Block 8; Shop 21 ASPAMDA Lagos Badagry Expressway from the 19th – 22nd day of October, 2015 respectively.
(f) AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the Respondents, their agents, privies, men, operatives, officers, officials, anybody acting for or on their behalf howsoever in their authority command or office from further arresting, harassing intimidating, humiliating, detaining, invading, breaking into and vandalizing the shops of the Applicants at Zone D Block 8; Shop 21 ASPAMDA Lagos Badagry Expressway or continuing in the infringement of the guaranteed rights of the Applicants.
(g) AN FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
(h) Cost of this action
The lower Court delivered judgment for the Appellants. In the judgment in pages 107-117 of the records. Specifically, the lower Court held in pages 115-117 of the record as follows:
I therefore accept the averments of the Applicants as true in relation to the 1st – 3rd Respondents. In the same vein, I also uphold the argument of Learned Counsel to the Applicant in his written Address.
The 1st-3rd Respondents were clearly in error by inviting the Applicants and detaining 1st Applicant beyond 24 hours without either releasing him or arraigning him before a Court of law on a dispute which was clearly civil. This is a clear breach of the provisions of the 1999 Constitution.
Having realized that it was a civil dispute, the 1st-3rd Respondents ought to have refrained from wading into the dispute and at best advised parties to approach the proper forum for redress. Regarding the 4th and 5th Respondents, even from their own averment it was clearly know to them that this was civil dispute and therefore ought to have resorted to a more appropriate forum. I doubt however if they can be held liable for merely reporting the 1st-3rd Respondents. As I opined earlier, at that point the 1st-3rd Respondents ought to have given the professional advice to the 5th Respondent. I doubt also if it would be legally sustainable that the 4th and 5th Respondents can instigate the 2nd Respondent to do anything in the course of their official duties. On the whole therefore, I find for the Applicants against the 1st-3rd Respondent who have not contested the Applicant’s averment.
Consequently, I hereby grant all the orders as prayed for the Applicants in relation to the 1st-2nd Applicants except in favour of the Applicants except Prayer E in place of which I award the sum of N500,000 (Five Hundred Thousand Naira) in favour of the Applicants against the 1st-3rd Respondent.
This judgment in summary is against the 1st-3rd Respondents and not against the 4th & 5th Respondents. The Appellants who are Applicants were victors in the lower Court but they are not satisfied with their victory as they believe they deserve more. Apart from the N500,000.00 given as damages, which the Appellants claim is not in line with what the 1st Appellant suffered, the Appellants are most dissatisfied that the lower Court did not find the 4th & 5th Respondents liable. Putting their dissatisfaction into action, they filed a notice of appeal of 2 grounds contained in pages 118-123 of the record.
The appeal was filed by Chief Nelson O. Imoh who settled the Appellants? brief of argument which was filed on 9/4/18. He adopted the said brief on 15/11/18. In the said brief, he raised a single issue for determination.
The sole issue for determination in his words is;
“Whether, and having regards to the state of the law, the facts and peculiar circumstances of the Appellants? case and the finding of the learned trial Court, the learned trial judge was right when he granted the application of the Appellant to enforce their fundamental human rights, but held refusing to award adequate compensation/damages against the Respondents and in favour of the Appellants, given the serial breach of their Fundamental Right by the Respondent.”
The 1st-3rd Respondents did not file any brief in this appeal. They also did not file any process in the lower Court. The 4th & 5th Respondents filed their brief of argument through their counsel Nnamdi Oragwu esq., from the law firm of Chief Anthony Idigbe (SAN). The brief was filed on 31/8/18 but deemed on 15/11/18. The 4th & 5th Respondents also raised a sole issue for determination which is similar to the issue raised by the Appellants. In his own words, the issue for determination is; “Whether the lower Court rightly determined the Appellants’ Originating Motion when it refused to award damages or compensation against the 4th & 5th Respondent in favour of the Appellants on alleged infringement of the Appellants’ Constitutional right by the 1st-3rd Respondents.”
I will look at the argument of both Counsels in their respective briefs.
The Learned Counsel for the Appellants referred to the affidavit evidence of the Appellants in the lower Court which is not challenged in answering the single issue raised in the negative. It is his submission that the Appellants sufficiently chronicled the breach of their fundamental right and the role played by the 4th & 5th Respondents in that regard. The totality of his submission is that in view of the finding of the lower Court that the matter which lead to the arrest and detention of the 1st Appellant is a civil matter, the N500,000 damages was inadequate and since the whole process was instigated by the 4th & 5th Respondents, they should be held liable for the breach of the fundamental right of the Appellants.
He referred to a cloud of cases among which are Ajomale vs. Yaduat ( No 2) (1991) 5 NWLR (pt 191) 266; Long- John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 547; Obiegue vs. A.G. Federation (2014) 5 NWLR (Pt. 1399) 171 @ 207; Egbuna vs. Ebguna (1989) 2 NWLR (106) 773: Bossa vs. Julius Berger Plc (2005) 15 NWLR (Pt. 948) 409; The Honda Place Ltd vs. Globe Motors Ltd (2005) 4 NWLR (Pt. 945) 273; Igwe vs. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61; McLaren vs. Jenning (2003) FWLR (Pt. 154) 528; Fawehinmi vs. Babangida (2000) 2 HRLR ( Vol. 2) 144 and I.G.P VS Ikpila (2016) 9 NWLR ( 1517) 236 etc.
The 4th & 5th Respondents’ Counsel in addressing the sole issue he raised answered the inquiry to the positive as the Appellants according to him did not prove in the lower Court that the 4th & 5th Respondents took active part in the arrest and detention of the 1st Appellant. He referred to State vs. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Nkado v. Obiano (1997) 5 NWLR (pt 503) 31; Cosmos Onah vs. Desmond Okenwa & 7 Ors (2010) 512; Igweokolo vs. Akpoyibo & Ors (2017) LPELR 41882. All the 4th & 5th Respondents did was to report an alleged crime of threat to life upon which the police acted. That does not amount to violation of the fundamental right of the Appellant on the side of the 4th & 5th Respondent.
This counsel submitted referring to Fajemirokun vs. Commercial Bank Nig. Ltd & Anor (2009) 2-3 SC 2; Samuel Isheno vs. Julius Berger Nig. Plc. (2008)2 SCNJ 220; Salihu vs. Gana & Ors (2014) LPELR- 23069. The Appellants, counsel submitted, has no case against the 4th & 5th Respondents.
On the issue of damages, it is counsel’s submission that the N500,000.00 awarded as damages is sufficient. It is submitted that an appellate Court will not interfere with award of cost unless it is manifestly low or high. He referred to Ijebu- Ode Local Government vs. Balogun (1991) 1 NWLR (Pt. 166) 136; Onaga & Ors vs. Micho & Ors (1961) 1 All NLR 324; FCDA vs. Unique Future Leaders int?l (2014) 17 NWLR (pt. 1436) 254. It is his submission that there is no prove to justify the request that the damages should exceed the amount given, as the Appellants did not prove exemplary damages. He referred to Zenith Bank Plc vs. Ekereuwem (2012) 4 NWLR (Pt. 1290) 219; University of Calabar vs. Oji (2012) 3 NWLR (Pt. 1288) 418. He finally urges Court to dismiss the appeal.
The Appellants are customers to the 5th Respondent. The 2nd Appellant secured a loan from the 5th Respondent using its shops as security. The 1st Appellant, the alter ego of the 2nd Appellant guaranteed the loan. On the refusal of the Appellants to pay back the loan, the 5th Respondent invoked a clause of the contract of the loan, thereby selling the shops used as security. The 4th & 5th Respondents could not get access to the shops consequent upon which they reported the matter to the 1st-3rd Respondents who went on to arrest and detain the 1st Appellant. This necessitated the action for the breach of the Fundamental Right of the Appellants. This in summary was the matter before the lower Court. The lower Court as mentioned above granted the claim of the Appellants against the 1st- 3rd Respondents but refused or better put see no reason to grant the prayers against the 4th & 5th Respondents.
The story of the Appellant is as in pages 8-12 of the record. The 4th & 5th Respondents story is in pages 59-63 of the record. The main thrust of the appeal is that the lower Court should have awarded damages more than N500,000 and most importantly, the lower Court should not have exonerated the 4th & 5th Respondents from liability. It would appear to me that the two areas of the quarrel of the Appellants can be discussed under one issue. The inadequacy of the damages/compensation is more a function of the decision of the lower Court in not finding the 4th & 5th Respondents liable. This is so because, should the lower Court find the 4th & 5th Respondents liable, the damages would have increased. In the circumstance, I feel comfortable to adopt the sole issue formulated by the 4th & 5th Respondents for determination. The issue for determination therefore is, whether the lower Court was right in holding that the 4th & 5th Respondents are not liable for the breach of the fundamental right of the Appellants.
Not in dispute from the facts of this case as shown in the record of appeal is that the 1st Appellant who is alter ego of the 2nd Appellant was arrested and detained by the 1st-3rd Respondents between 19th October and 21st October 2015. This is obviously beyond 24 hours. Also not in dispute is that the matter that initiated this problem is from a loan secured by the 2nd Appellant from the 5th Respondent.
The Appellants are saying that the arrest is predicated on a civil matter of a simple loan transaction. If it is so, I agree absolutely with the Appellants that the police have no right or duty to be involved in such matters. In AIGP & Ors vs. Gombe (2016) LPELR-40816 (CA), this Court per Georgewill, JCA at pages 30-32 held:
“The powers of the Police going by the combined effect of the succinct provisions of Section 214 of the Constitution of Nigeria 1999 as amended and Section 4 of the Police Act 2004 and all other laws enabling the Police to act, are indeed very enormous but yet not left at large and in my view does not cover intermeddling or interfering with the judicial powers of a Court of law.
The obvious and undisputed facts of this appeal show clearly that the Appellants, in exercising powers they do not possess by seizing goods lawfully auctioned on the orders of a Court of law pursuant to the execution of its judgment, acted without authority and in impunity. In law, any action founded on impunity and thus in disregard of due process of law must be cut down to size and deprecated by the Court in matters before it. This was what the Court below, in my finding, rightly did loud and clears in entering judgment against the Appellants by cutting the impunity of the Appellants to size. See Military Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (Pt. 18) 621. See also Vaswani Trading Co. vs. Savalakh & Co. (1972) 1 All NLR (Pt. 1) 483; Ojukwu vs. Military Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Daniel vs. Ferguson (1891) 2 Ch.D 27; Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR 703.
My Lords, I feel constrained to observe that the culture of impunity, as displayed by the Appellants, merely because they are Police Authority but, without any lawful authority and at the instance of a party aggrieved with the judgment and orders of a Court of law and in total disregard of the due process of law and leading to the seizure of goods lawfully auctioned on the orders of a Court of law pursuant to the due enforcement of its judgment, like many other acts of impunity in the land by those in and or out of authority have been tolerated for far too long in this country and has indeed run its full circle and must be stopped and cut to size as rightly did by the Court below and I unhesistantly commend the Court below for so doing.”
Similarly in Abah vs. UBN Plc. & Ors (2015) LPELR-24758 (CA) Mbaba, JCA at pages 97-99 held:
“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 pre of doing lawful duties.”
See the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (pt.677)653; (2012) LPELR 9218 CA; where it was held:
“Appellant could not therefore hide under the cover of reporting the 1st Respondent for issuance of dishonoured cheques, to subject him to the ordeal of arrest and detention… and escape the wrath of the law. He was pursuing the recovery of the alleged debt and resorted to the use of the Police…”
In Ibiyeye & Anor vs. Gold & Ors. (2012) ALL FWLR (Pt. 659) 1074, this Court also held:
“…The resort to the police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the Courts. The Police have also been condemned, and rebuked, several times, for abandoning its primary duties of crime detection, prevention and control, to dabbling in enforcement or settlement of debts and contracts between quarreling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression.” See also Chief (Hon) James Clement M. Ohanedum and Anor. vs. Commissioner of Police & Ors CA/OW/175/11 , delivered by this Court on 23/1/15.
I believe the above can also be said of the E.F.C.C. (also Law Enforcement Agency) which, rather than advising 1st Respondent to use legal means to recover the alleged debt, allowed its coercive powers to be used by the 1st Respondent to harass, intimidate and brutalize the Appellant, his wife, children and workers in a purely business transaction, legitimately entered into in a banker/customer relationship. By so doing, Appellant’s fundamental rights were violated and the trial Court was wrong to justify the breaches. In that case of Chief James Clement M. Ohanedum & Anor. vs. C.O.P & Ors. (supra), we held that:
“The Court has a duty to protect the fundamental rights of citizens and must not permit any violation for whatever reason, unless as stipulated in the law.” See Enukeme vs. Mazi (2014) LPELR – 23540 (CA).”
The lower Court held that much when in page 116 it held that the transaction is based on civil matter and therefore the police should not have been involved. The lower Court went further to say that even the 4th & 5th Respondents knew that the transaction was a civil matter. The challenge with the finding of the lower Court is that with respect, is a bit inconsistent with the conclusion reached. If the 4th & 5th Respondents knew that the matter they were reporting to the police is a pure civil matter, it is therefore inconsistent to hold that they are not liable for a breach of the Fundamental Right of the Appellant arising from the case they reported. This is because the report would amount a report to be done in bad faith and consequent upon that, the 4th & 5th Respondents should have part of the liability.
I agree however with the legal position stated by the 4th & 5th Respondents’ counsel that a party who barely or merely reports a crime cannot be held responsible for what the police does with the report but the point must be made that such a report must be done in good faith and the involvement of the party reporting the matter must not go beyond that. In Orkater vs. Ekpo & Ors (2014) LPELR-23525 (CA) this Court per Otisi, JCA at page 30 held:
“It must be emphasized that the Appellant was certainly acting within his rights in taking his complaint to the police. In Fajemirokun vs. Commercial Bank Nig. Ltd LPELR [2009] SC. 336/2002, the Supreme Court, per Ogebe, JSC, said: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done malafide.”
In concurring with the lead Judgment, A. M. Mukthar, JSC (now CJN) said: “…I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion…” See also: Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR (Pt.421) 622 at 629, Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt. 518) 635 at 667. It is for the police to investigate a complaint laid before them, and upon investigation, to take appropriate action.”
If a party assists the police to get the person arrested, and if such arrest amount to a breach of fundamental right, the person who assisted the police will be as liable as the police. This is because in such a situation, the person plays an active part towards the arrest. It is the law that if the report made to the police is made malafide, it takes the report from the angle of an innocent person to that of an interested party who wants to undo or oppress the other person. In such a situation, the law will come in aid of the oppressed. See Maduka vs. Ubah & Ors (2014) LPELR-23966 (CA).
The police station is not a place for arbitration. It is not a place for civil matters. The police force should not reduce itself to a debt recovery agent. This is clearly not the duty of the police has shown in Section 4 of the Police Act which states the functions of the police which is to maintain law and order in the society. In doing this, the police can by investigate and prosecute offenders of crime. The police should not to be used to settle scores or to be used by the mighty to oppress the small. It is not an agent of vendetta. A professional police force will guard jealously its function in society and never allow anyone to debase or erode its Constitutional function. Even if a citizen decides out of ignorance or wickedness to take a civil matter to the police, the police has the duty as observed by the lower Court to direct the person to the appropriate place been a Court with civil jurisdiction. A police officer who decides to engage in debt recovery or deal with civil matters reported to it is acting completely outsides its jurisdiction and exposing himself to unpleasant comments and litigation.
I make bold to say, he is not deserving of the uniform he is wearing. Going outside the duty of the police will amount to arrogating itself powers that it does not have. It is direct confrontation with the judicial power donated to the Court by the Constitution for the police to handle civil matters. No organ of government or agency of government is allowed to usurp the powers donated to another. There must be mutual respect for each organ or agency of government. I am firm in my believe that cases of abuse or breach of fundamental right will be greatly reduced if the police act professionally. It is true that once a citizen reports a matter to the police, the rest is left to the police. The decision to arrest or detain is squarely on the shoulders of the police and not the individual. The individual will surely not be responsible for the decision of the police, however when a citizen reports a matter which he knows or ought to know that the police has no power to handle being a civil matter, consequent upon which the police makes arrest which breach the fundamental right of another person, the person who reports the matter will be liable, as such a report, is said to be done mala fide, that is in bad faith.
However, if a civil matter has some criminal connotation, that is to say it is not purely a civil matter; a citizen can report that criminal content. The police is meant to hear complains on criminal matters and then proceed to investigate professionally and if need be proceed to arrest and detain but this must be done within constitutional limit to bring the suspect to Court. If after reporting a criminal matter the police in exercise of their duty of investigation go beyond the constitutionally acceptable limits, the police will answer for it and not the person who made the report. No citizen no matter how highly place should dictate to the police on how to go about their duty of investigation, who to arrest, when to arrest and when to release a suspect. The police should be guarded by the constitutional provision.
The issue here is, whether what is before the police was a civil matter or a criminal matter. Putting it more specifically in relation to this case, what case did the 4th & 5th Respondents report to the 1st-3rd Respondents’ If it is the case of recovery of the debt owed the 5th Respondent, the 4th & 5th Respondents will be liable for the violation of the Fundamental Right of the Appellants. This is because it will amount to a report in bad faith. That appears to be the case the Appellants is putting forward. The 4th & 5th Respondents on the other hand are saying that the case they reported to the police is threat to life and not the civil matter of loan recovery. If the record of appeal discloses the fact as shown by the 4th & 5th Respondents, the decision of the lower Court will be upheld as it relates to the 4th & 5th Respondents. If on the other hand, the Appellants are right, the 4th & 5th Respondents will be held liable and this appeal will succeed.
In this respect, we will have to look at the record of appeal which contains the counter affidavit of the 4th & 5th Respondent. In paragraph 26 of the 4th & 5th Respondents counter affidavit in page 62 of the record they averred that they reported a case of threat to life to the police and it is that petition that the police while investigating that led to the arrest and detention of the 1st Appellant. The paragraph state thus:
“That I did not instigate the police to arrest the 1st Applicant or anyone. I only lodged a petition to the police based on the 1st Applicant?s threat to my life following the sale of the pledged shops used as security for the facility granted to the Applicants and nothing more.”
Though the 1st-3rd Respondents did not file any process to confirm that, if this is true that puts an end to the agitation of the Appellants against the 4th & 5th Respondents. The lower Court in its decision seems to be salient on this point. The premise upon which the lower Court held that the 4th & 5th Respondents cannot be liable is that all they did was to report the matter and they did not instigate and could not have instigated the 1st-3rd Respondents. I will now look at the affidavit evidence to know what is the base of this finding in page 116 of the record. If there is nothing to support the finding, I am under obligation in the interest of justice to interfere with the finding. See Alhaji Jimoh Ajagbe vs. Layiwola Idowu NSCQR Vol. 46 2011 page 846; Momoh & Ors vs. Umoru & Ors NSCQR Vol. 46 2011 page 292
The 4th & 5th Respondents in paragraph 26 of the counter affidavit contained in page 62 of the record cited above has said they did not instigate the arrest of the 1st Appellant. To them, the arrest of the 1st Appellant is based on the petition they wrote for threat to life. The 1st-3rd Respondents did not file any process and therefore there was nothing from the 1st-3rd Respondents to confirm the averment in paragraph 26 of the counter affidavit. The 4th & 5th Respondents that made that assertion have a duty in law to prove it. This is a settled legal principle. See Akinbade & Anor vs. Babatunde & Ors (2017) LPELR- 43463 (SC); Dasuki vs. FRN & Ors (2018) LPELR-43897 (SC); Akerele vs. Atunrase & Ors (1969) 1 ANLR 195.
The 4th & 5th Respondents must prove the fact that a petition of threat to life was written and indeed sent to the 1st-3rd Respondents. In the absence of any process from the 1st-3rd Respondents, the 4th & 5th Respondents have the duty to enhance the averment by presenting the petition annexing same to the counter affidavit as Exhibit? It is not enough for any person to make averment in an affidavit but must support such averment with material facts. In Fajimi vs. LASTMA & Ors (2014) LPELR- 22253(SC) at page 35-36, Bage JSC held:
‘The Appellant himself in paragraph 4.1.5 of his brief of argument admitted that it is not in all cases where there is no counter-affidavit to an affidavit evidence that averments therein will be deemed admitted. This is the law correctly stated. The affidavit evidence to be acted upon by the trial Court must be credible and reliable even if unchallenged. The averment must not be hollow, empty, and bereft of any substance, and the Court is expected to take it, and act upon it, hook line and sinker.
The Supreme Court in the case of NEKA BBB MFG CO. LTD vs. A.C.B. LTD (supra), earlier cited in this judgment provided the guide: “An opposing party should not be expected to challenge an evidence that is hollow, empty or bereft, of any substance as that would to my mind amount to chasing a shadow. I am familiar with the cases of ODULAJA vs. HADDAD (1973) 1 ANLR 191 to the effect that an evidence not challenged by the party that had the opportunity to do so, should ordinarily be believed and accorded credibility. I believe that such holding rests on the premise that such evidence is capable of being believed if not challenge. In other words, whether evidence is weak in content as not to assist the Court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue, it will be safe to ignore it as it does not attain the standard of credibility. Although, it is the general rule that uncontroverted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the Court but must be accepted as true, it is also true to say that the Court is not in all circumstances bound to accept as true testimony an evidence that is uncontroverted where it is willfully or corruptly false, incredible improbable or sharply falls below the standard expected in a particular case.”
This responsibility is on the 4th & 5th Respondents. I have gone through the record of appeal and there is no such document before the lower Court and in the record to show that the 4th & 5th Respondents wrote a petition to the 1st- 3rd Respondents on threat to life. In the absence of the petition before the lower Court, the lower Court is in order to find as he did in page 116 that the matter involved was a civil matter. Since the petition is not before the Court, it only stands to reason that the 4th & 5th Respondents reported a civil matter to the police. This makes the report made by the 4th & 5th Respondents a report done in bad faith and therefore they are as responsible as the 1st-3rd Respondents in the breach of the Fundamental Right of the Appellants. It would appear as found by the lower Court that the 4th & 5th Respondents only made a report. If that was the case and the report was on a criminal matter, the 4th & 5th Respondents will have been off the hook.
This however is not the case here. They made a report in bad faith knowing that it is a civil matter outside the competence of the police. In the circumstance, the action of the 4th & 5th Respondents is beyond just reporting a matter. Technically, it seems so but substantially and legally it is more than that. While the finding of the lower Court was right to the effect that the matter involved in this appeal is a civil matter but the conclusion that the 4th & 5th Respondents are not liable is wrong. The lower Court was therefore in error in holding that the 4th & 5th Respondents are not liable. They initiated the process which led to the violation of the Fundamental Right of the Appellants. If not for the initial action of the 4th & 5th Respondent in reporting a civil matter to police, the police would not have wrongly exercised their powers. The lower Court was therefore wrong in exonerating the 4th & 5th Respondent. I resolve the sole issue in favour of the Appellants.
Now as to the damages, my finding above clearly amounts to reviewing the damage and compensation ordered by the lower Court. The N500,000 was the liability of one party but since the 4th & 5th Respondents are also liable, the compensation must naturally increase. The Appellants in their relief in the claim are seeking for N100,000,000 damages as exemplary damages. Such damages are awarded in situations such as this where a citizen has been oppressed by another which turns out to be a government official. In Eliochin (Nig.) Ltd & Ors vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 the Supreme Court held:
I have already stated the reason, which the Court of Appeal gave for refusing to award damages to the plaintiffs. It all turned on the decision of the House of Lords in Rookes v. Barnard (1964) A. C. 1129 in which Lord Devlin severely limited the categories in which exemplary damages could be awarded to:
(i) “Oppressive, arbitrary and unconstitutional action by servants of the government”;
(ii) Cases “in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.” and
(iii) “Any category in which exemplary damages are expressly authorized by statute.” (ibid pp.1226-1227).
See also Allied Bank of Nig. Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374: Ezeani & Ors vs. Ejidike (1964) LPELR-25144 (SC). In G.K.F. Investment Nig. Ltd vs. Nigeria Telecommunication Plc. NSCQR Vol. 39 2009 page 426 @ 459, I.F. Ogbuagu JSC held:
‘Exemplary, punitive, vindictive or aggravated damages where claimed, are usually awarded, whenever the defendant or defendants’ conduct, is sufficiently, outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law and the like.’
This is a case that really deserves the award of exemplary damage. The Respondent acted arbitrarily and oppressively when they violated the right of the Appellant by arresting and detaining him for a period of 4 days over a purely civil matter which the 1st-3rd Respondents has no powers to handle. The arrest and detention was based on the complaint made to the 1st-3rd Respondents by the 4th & 5th Respondents. All the Respondents have acted in ways that are outrageous and therefore they should be penalized accordingly. In the circumstance, I vary the damage awarded and increase it to N3,000,000 as damages for exemplary damage jointly and severally against each set of the Respondents. By this, the 1st-3rd Respondents represent one set and the 4th & 5th represent another set.
I will however enter a caveat on relief for which is the relief for perpetual injunction. The injunction is granted as it relates to the matter covered in this appeal and not an open or blank cheque.
This appeal has merit and it is allowed. I award N300,000.00 (Three Hundred Thousand Naira) costs against the 4th & 5th Respondents.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The primary duty of the Police by Section 4 of the Police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders: IBIYEYE vs. GOLD (2012) ALL FWLR (PT 659) 1074. The Police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions. See MCLAREN vs. JENNINGS (2003) FWLR (PT 154) 528.
By all odds, the law is that a person who merely makes a report of a criminal infraction to the Police cannot be held accountable for the actions taken by the Police except where he was instrumental to and actively instigated their actions over and beyond mere lodging of a formal report of a criminal infraction. That is however not to say that when, as in the circumstances of this action, a purely civil matter is reported to the Police, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made malafide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place.
Such conduct which portrays disregard of the law and is aimed at using the coercive powers of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages.
Accordingly, I avow my concurrence with the leading judgment of my learned brother, Ebiowei Tobi, JCA, which I was privileged to read in draft that the appeal is meritorious. I equally join in allowing the same on similar terms as contained in the leading judgment, inclusive of the order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother, EBIOWEI TOBI, JCA and I agree with him.
It is the elaborate reasons set out in the leading judgment, which I fully adopt as mine that I find the Appeal to be meritorious. It is accordingly allowed. I abide by the consequential order(s) made in the leading judgment.
Appearances:
Chief Nelson O. Imoh with him, K. I. Marcus, Esq.For Appellant(s)
Nnamdi Oragwu, Esq. with him, U. Nwalala, Esq. for 4th and 5th Respondents
For Respondent(s)
