MRS. ENDURANCE ODUBU V. LIEUTENANT OLORUNDUYILEMI STEPHEN & ORS
(2012)LCN/5745(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/254/2011
RATIO
DAMAGES: PRIMARY OBJECT OF AN AWARD OF DAMAGES
In law the primary object of an award of damages is to compensate the Plaintiff or Applicant victims for the harm done to him. The secondary object of award of damages is to punish the Defendants for their conduct in inflicting harm on the Plaintiff-victim particularly when the Defendants’ conduct is sufficiently outrageous to merit to punishment such as in this case, where it discloses cruelty insolence, excesses and flagrant disregard to the law and humanity see ELION CHIN NIGERIA LIMITED V. MBADIWE (1986) 1 NWLR (PT.14) 47 at RATIO 5-6. PER GEORGE OLADEINDE SHOREMI, J.C.A
WORDS AND PHRASES: DEFINITION OF A PUBLIC OFFICER
IN WILSON V. ATTORNEY GENERAL OF BENDEL STATE & ORS (1985) 2 SC. 191 Oputa JSC at page 54 defined public officer thus:
“The expression “Public Officer” has been defined in Section 7 (1) of the public Officers (special Provisions) Decree now Act No. 10 of 1975 as;
“Public Office” means any person who holds or has held any officer in
(b) the Public Service of a state
(c) the service of a body whether corporate or unincorporated established under a Federal or State Law.” PER GEORGE OLADEINDE SHOREMI, J.C.A
TORT: WHAT IS VICARIOUS LIABILITY
What then is vicarious liability? In IFEANYI CHUKWU (OSONDU) LTD V. SOLEH BONEH LTD (2000) ALL NLR 604,3SC. 42, Ogundare JSC at page 15 had this to say:
“In summary to succeed against a master the Plaintiff must:
1) Establish the liability of the wrongdoer and prove
2) That the wrongdoer is a servant of the master and
3) That the wrongdoer acted in the course of his employment with the master. See YOUNG V. EDWARD BOX & CO. LTD (1951) TLR 789, 793 where Dunning L.J. said:
“In every case where it is sought to make a master liable for the conduct of his servant, the first question is whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servants liability.” PER GEORGE OLADEINDE SHOREMI, J.C.A
EVIDENCE: HOW ARE CONFLICTING AFFIDAVITS RESOLVED
It is trite law that where there are conflicting affidavits on material issues the conflicts are to be resolved VIVA VOCE by calling oral evidence. See OLU IBUKUN & ANOR V. OLU IBUKUN (1974) ALL NLR 463; FALOBI v. FALOBI (1976) 9 – 10 SC 1; GROUP DANONE & ANOR v. VOLTIC (NIGERIA) LTD (2008) 3 – 4 SC.32. PER GEORGE OLADEINDE SHOREMI, J.C.A
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MRS. ENDURANCE ODUBU Appellant(s)
AND
1. LIEUTENANT OLORUNDUYILEMI STEPHEN
2. EDO STATE GOVERNMENT
3. INSPT. OBAYOGBONA FRIDAY
4. SGT. JOHN DANIEL
5. ELIZABETH BENJAMIN
6. AZI AGWON
7. DODO DANBO
8. NWOSE IFEOMA
9. ENECHE SOLOMON
10. EWERE ONYELEPE
11. COMMISSIONER OF POLICE
12. ALIU SULEIMAN
l3. WAKAMA RUTH
14. DIRECTOR OF STATE SECURITY SERVICE, EDO STATE Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A (Delivering the Leading Judgment): This is the Judgment in respect of the appeal lodged against the Judgment dated 25/7/2011 delivered by Adamu Hobon J. of Federal High Court sitting in Benin.
It was in respect of an action commenced by a motion on notice filed on 13/11/2010 for the enforcement of Fundamental Human Rights of the 1st Respondent (now Appellant).
The motion on notice was filed with a statement verifying affidavit and a written address. Each of the Respondents filed a counter-affidavit to oppose the application. The parties later adopted their respective written address and Judgment was delivered as follows:
“I therefore hold:
(1) That Applicant was infact, arrested, detained, brutalized, put in apprehension of extra-judicial loss of life by shooting of live rifle at him but missed him and hit the ground, injuries were caused to the Applicant by the Respondents without any disclosed reasonable offence known and defined by any statute is an unlawful, unconstitutional and illegal acts on the part of the Respondents as a team and are therefore liable jointly and severally.
(2) On the issue of special or specific damages or claims suffered in the sum of Two Million Naira being cost of medical treatment which is still going on for severe wounds, and injuries sustained as evidenced by Exhibit B1 – 5, C1 – 10 which tallied with all the evidence, repairs of his damaged car and a Wedding Ring lost in the scuffle, the Respondents did not deny this claim in any meaningful and reasonable way specifically but evasively which means in law they admitted this claim. It shall therefore be granted in terms. The special damages of Two Million Naira claimed ought to succeed and is hereby granted.
(3) On the general damages of (N500, 000,000.00) Five Hundred Million Naira for the violation of the
Applicants Fundamental Human Rights. In law the primary object of an award of damages is to compensate the Plaintiff or Applicant victims for the harm done to him. The secondary object of award of damages is to punish the Defendants for their conduct in inflicting harm on the Plaintiff-victim particularly when the Defendants’ conduct is sufficiently outrageous to merit to punishment such as in this case, where it discloses cruelty insolence, excesses and flagrant disregard to the law and humanity see ELION CHIN NIGERIA LIMITED V. MBADIWE (1986) 1 NWLR (PT.14) 47 at RATIO 5-6. In the instant case upon the totality of evidence, the Appellant’s conduct and part played in attempt for self defence upon the provocative acts of the Respondents when carefully assessed along with the evidence of heralding siren blaring at that material time by the Respondents mitigates the general damages to be considered for award. Heralding siren on a public highway signifies emergencies like, fire outbreak, victims or sick persons being carried to hospitals, Government officials in movement or currencies in transit which calls for right thinking persons to give way for the emergencies. Applicant did not do so, though contravened or breach no law.
The conduct mitigates quantum of damages. In my opinion upon all the circumstances of this case Ten Million Naira (N70,000,000.00) is sufficient as general damages in addition to the Two Million Naira special damages awarded.
I so award Ten Million Naira as general damages against the Defendants or Respondents jointly and severally.
(3) On the issue of public apology, this is a statutory remedy under section 35 (5) constitution that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from appropriate authority or person. In the circumstance therefore the demand for public apology by the Applicant is in order, but the number of media publications appears too many, any two of print and Electronic media is sufficient for the purpose intended. It is so granted.
The Applicant case ought to succeed and be granted in part.
It is hereby granted in terms of reliefs:
(1) ONE (1)
(2) TWO (2)
(3) FOUR (4) (In two of any print and electronic media)
(4) FIVE (5) (In the sum of Ten Million Naira) and relief
(5) SIX (6) on the motion paper each is granted against the Respondents jointly and severally in favour of the Applicant.
Relief Three (3) fails and is dismissed.
THIS SHALL BE THE JUDGMENT OF THIS COURT SO BE IT.
The 1st Respondent being dissatisfied with the Judgment filed Notice of Appeal containing 4 Grounds of Appeal to challenge the Judgment.
After transmission of record of appeal, each of the parties filed and exchanged briefs through their respective counsel.
The Appellant’s brief was filed on 28/10/2011. The brief was settled by Andrew M. Malgwi for Rickey Tarfa & Co.
The Appellant formulated 6 Issues for determination as follows:
“(1) Whether the trial Court can assume jurisdiction over the suit when by the provisions of the Public
Officers Protection Act and Public Officers (special Provisions) Act, the said suit was statute barred and incompetent (Ground l);
(2) Whether the Trial Court was right to have assumed jurisdiction over the suit notwithstanding the fact that none of the reliefs claimed by the 1st Respondent herein fell within provisions of Chapter IV of the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ground 2);
(g) Whether the trial Court con validly make findings on material issues of fact contained in conflicting affidavits without calling for oral evidence to resolve the conflicts (Ground 3);
(4) Whether the Appellant can be held vicariously liable for an act committed by the 3rd to 10th, 12th and 13th Respondents in the course of their statutory duties in view of the fact that the Appellant is a private person and was neither a part of the team nor at the scene of the incident (Grounds 4 & 5);
(5) Whether the Appellant was afforded fair hearing at the trial Court, given the fact that the Learned trial Judges refusal to consider or determine the 2nd issue raised in the Appellant’s written address dated 4th May, 2011 (Ground 6); and
(6) Whether the trial Court was right to have awarded special damages which were not proved as well as unreasonable, punitive and oppressive general damages against the Appellant when the Appellant is not the principal of the 10th, 12th and 13th Respondents (Grounds 7 & 8).
On Issue One the Appellant’s counsel submitted that the suit was statute-barred by virtue of public Officers (Special Provisions) Act. He relied on KASANDUBU V. ULTIMATE PETROLEUM LTD (2008) ALL FWLR (Pt. 417) 155 at 182, UNILORIN V. ADENIRAN (2007) 6 NWLR (Pt. 1037) 498 at 521-522 and ELIBANJO V. DAWODU (2006)15 NWLR (Pt. 1001) 76 at 132.
The learned counsel submitted that the provision of Order III Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 was totally in applicable to this case. He cited NWAOGWUGWU V. PFRN (2007) 12 WRN 24.
He added that a rule of court or procedure could not take away the effect of statutory provision stipulated under a statute. He referred the court to KALU V. ODILI (1992) 5 NWLR (Pt. 240) 730; NWANEZIE V. IDRIS (1993) 3 NWLR (Pt. 279) 1. On Issue No Two, learned counsel submitted that none of the reliefs sought was brought pursuant to any specific provision of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria or the African Charter on Human and peoples’ Rights (Ratification and Enforcement Act) and so the lower court ought not to have entertained the action as filed. He relied on UZUOKWU V. EZEONU II (1991) 6 NWLR (Pt. 200) 708 at 751, EGBUONO C. B.R.C. (1997) 12 NWLR (Pt. 537) 29 at 40 – 47 and other cases.
On Issue Three, learned counsel referred to the affidavit filed by the parties and the conflicts therein. He then submitted that the trial court ought to have invited oral evidence to resolve the conflicts. He referred to Section 116 of the Evidence Act 2011 and ANZAKU V. GOVERNOR, NASARAWA STATE (2005) 5 NWLR (Pt. 919) 448 at 492 and a host of other cases.
On Issue Four, learned counsel for the Appellant submitted that the 1st Respondent was the wife of the Deputy Governor of the State and so was not a public officer and could not be held vicariously liable for the acts/actions of the 3rd -10th , 12th and 13th Respondents. He relied an EZEADUKWA V. MADUKA (1997) 6 NWLR (Pt. 578) 53 at 668.
On Issue Five. Andrew Malgwi for the Appellant submitted that the Appellant was not afforded fair hearing as the lower court failed to consider, determine or pronounce upon the 2nd Issue raised by the Appellant in her written address. He relied on YUSUF v. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332 AT 960.
On Issue Six, learned counsel for Appellant submitted that the lower court was wrong to have awarded special damages as the 1st Respondent failed to prove the special damages. He added that the general damages awarded by the lower court was unreasonable, punitive and oppressive as no case was made out for any damages.
He finally urged the court to set aside the Judgment and resolve all the issues raised in favour of the Appellant.
The 1st Respondent’s brief was prepared by C.N. Dike from Ibamhen Dike & Co. chambers. It was deemed filed on 26/9/2012.
Learned counsel for the 1st Respondent also formulated 6 issues for determination. The issues are:
“(1) Whether this suit is statute barred as against the 3rd – 10th, 12th and 13th Respondents in view of the provisions of the Public Officers Protection Act and Public officer (special provision) Act (Ground 1).
(2) Whether the relief claimed at the lower court by the 1st Respondent as Applicant did not raise from the intendment, language and tenets of the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (Ground 2).
(3) Whether the findings made by the learned Trial Judge in the suit were perverse and/or occasioned miscarriage of justice (Ground 3).
4) Whether the Appellant is not vicariously liable for the acts of the 3rd, 10th, 12th and 13th Respondents committed in the cause of their duty of protecting the Appellant as her security escort/convoy team (Ground 4 and 5).
(5) Whether the learned judge breached the principle of fair hearing in relation to the Appellant in his consideration of the evidence and written address of the Appellant (Ground 6).
(6) Whether the damages (special and general) awarded by the trial Court was not base on the evidence before Court (Ground 7 and 8).
On Issue One, counsel for the Respondents submitted that the operation of Section 2 (9) of the Public Officers Protection Act was excluded from actions brought pursuant to Order 3 Rule I of the Fundamental Human Rights (Enforcement Procedure) Rules 2009. He submitted that Rules made under the Constitution had the force and power of the Constitution. He cited AKARI V. IGP & ANOR (2000) 1 NWLR (Pt. 670).
He further submitted that the acts of the 3rd – 10th, 12th and 13th Respondents were not acts done in pursuance of execution or intended execution of any ACT or LAW or of any PUBLIC DUTY.
On Issue two, learned counsel submitted that each of the principal reliefs claimed by the 1st Respondent/Applicant fell within a particular section or sections of the Constitution on Fundamental Human Rights.
On Issue three, 1st Respondent’s counsel submitted that the live issues in the case were:
(i) Whether the Applicant (1st Respondent) was beaten by the Appellants convoy team.
(ii) Whether he was arrested and taken away from Adesuwa/Sapele Road junction ultimately to Edo State Government House premises and
(iii) Whether the Applicant was charged to court for any offence known to law at all.
He said there were no conflicts in the affidavits on the issues. He cited ALABI V. STATE (2007) ALL FWLR (Pt. 376) p. 795 at 805; OYEJOHA V. AGBOOLA (1995) 8 NWLR (Pt. 411) p. 88 at 706.
On Issue Four, learned counsel submitted that the Appellant was vicariously liable for the “inhuman, brutal and barbarous acts” of the 3rd – 10th and 12th-13th Respondents while guiding the Appellant and under her authority. He referred to the definition of vicarious liability in Blacks Law Dictionary with Pronunciation,5th Edition.
On Issue Five, learned counsel submitted that the learned trial Judge considered all issues raised and the onus was on the Appellant to show that all things taken together, the decision of the court was reached in a manner that denied him fair hearing. He relied on SAID JAMMAL V. STATE (1999) 12 NWLR (Pt. 632) p. 582 at page 598.
On Issue Six, 1st Respondent’s counsel contended that the claim for special of Two Million Naira was not contested. He cited MAN HOLDING LTD V. UBA PLC (2003) 2 NWLR (Pt. 803) page 71 at 87; so it should be deemed admitted.
On general damages he submitted that the damages of Ten Million Naira awarded by the Learned trial Judge was reasonable. He finally urged this court to dismiss the appeal and affirm the Judgment of the lower court. The Appellant’s counsel filed a Reply Brief to reply the 1st Respondent on the issues raised in 1st Respondent’s brief.
None of the other Respondents filed any brief of argument despite having been served with the briefs filed.
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the Record of Appeal. I shall consider this appeal in the light of the six issues formulated by the Appellant.
Issue No I
Was the suit statute-barred by the Provisions of the Public Officers Protection Act and Public Officers (Special Provisions) Act?
It is significant to refer to the Provisions of Order 3 Rule I of the Fundamental Human Rights Enforcement Rules 1979 and that of 2009.
Order 3 Rule 1 of the 1979 Rules reads:
“Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from the date of the happening of the event or act complained of or such other period as may be prescribed by any enactment or except where a period is so prescribed the delay is accounted for to the satisfaction of the court or judge to whom the application for leave is made.
It seems clear that the 1979 Rules do not forbid the application of limitation laws in cases of Fundamental Human Rights Enforcement. This was the decision of this court in NWAOGWUGWU V. PRESIDENT FEDERAL REPUBLIC OF NIGERIA (2007) WRN Vol. 72, 24 at 54 where Adekeye JCA held thus:
“In the case of ABIA STATE UNIVERSITY V. ANYAIBE (1995) 3 NWLR (pt. 439) 646, the Court of Appeal distinguished an action under the Fundamental Rights Enforcement Procedure Rules as a peculiar action or special action as it has its own unique procedure, this however does not deviate from the fact that the Fundamental Right Enforcement Procedure is a general rule which every Applicant seeking to enforce his or her fundamental right must invoke whereas the Public Officers Protection Act is an enactment promulgated to protect public officers in the discharge of their public duty. This court is left to invoke which ever limitation period is applicable in the peculiar circumstance of a particular case.”
However under the 2009 Rules the situation is different.
Order III Rule 1 of the 2009 Rules stipulates:
“An Application for the enforcement of Fundamental Right shall not be affected by any limitation statute whatsoever”
Section 46 (1) of the 1999 Constitution gives strength to Order III Rule 1of 2009 Rules. It states:
“Any person who alleges that any of the provisions of this chapter has seen is being or likely to be contravened in any state in relation to him may apply to the High Court in that state for redress.”
This provision is not subject to the provision of any enactment. Rather it overrides it.
What i am saying in effect is that limitation laws are not applicable to actions under the Fundamental Human Rights Enforcement Rules.
The next question to consider at this stage is whether or not the Public Officers protection Act or Public Officers (Special Provisions) Act are applicable to the Appellant at all. Is the Appellant a public officer?
IN WILSON V. ATTORNEY GENERAL OF BENDEL STATE & ORS (1985) 2 SC. 191 Oputa JSC at page 54 defined public officer thus:
“The expression “Public Officer” has been defined in Section 7 (1) of the public Officers (special Provisions) Decree now Act No. 10 of 1975 as;
“Public Office” means any person who holds or has held any officer in
(b) the Public Service of a state
(c) the service of a body whether corporate or unincorporated established under a Federal or State Law.”
Who is the Appellant? She was the 1st Respondent at the lower court. The 1st Respondent in paragraph 4 of his supporting affidavit filed at lower court described her this way:
“That the 1st Respondent is the wife of the Deputy Governor of Edo State of Nigeria and the agent of 2nd Respondent.
I have gone through the various affidavits filed and I am unable to see how the Appellant qualifies to be a public officer protected by the Public Officers protection Law and I therefore so hold. I therefore hold that the suit now an appeal was not barred by either the Public Officers Protection Act or Public Officer Special Provision Act No 10 of 1976.
The second question is whether the trial court rightly assumed jurisdiction over the suit. I have carefully gone through the various processes filed by parties (particularly the originating motion and the supporting affidavit).
The prayers of the Applicant as contained on the body of the motion are quoted hereunder for clarity’s sake:
“(1) A declaration that the acts of the Respondents in torturing, biting the Applicant on the chest, ears, cutting off the Applicant right thumb with teeth bite, pinning his head down with booth in the Respondent Hilux leep, ruthlessly brutalizing and unlawfully arresting and detaining the Applicant for over one hour without any justifiable reason is unlawful, unconstitutional and a violation of the Applicant’s right to human dignity and liberty under the constitution of the Federal Republic of Nigeria 1997, the African charter on human and peoples right and the various relevant international instrument on Human Right.
(2) A declaration that the action of the Respondents, and especially the 8th, 12th and 13th Respondents in putting the Applicant in apprehension of extra judicial loss of his life in that the 8th Respondent cocked his rifle to shoot the Applicant and actual released two gunshot is unlawful, unconstitutional and a violation of the Applicants right to life under the constitution of the Federal Republic of Nigeria 1999, the African charter on Human and Peoples Right and the various relevant international instruments on Human Right.
(3) A declaration that the prevention, harassment and forceful blocking of the Applicant from lawfully and peacefully driving his Honda car with Registration No DC 487 JJ along Sapele express road, a Public Road by the Respondents using a convoy amounts to discrimination, harassment, encumbrance and a violation of the Applicants right to freedom of movement under the constitution of the Federal Republic of Nigeria 1999, the African charter on Human and Peoples Rights and the various relevant international instruments on human rights.
(4) An order compelling the Respondents to issue an unreserved apologies (the contents of which must first be acceptable to the Applicant before publication) to the Applicant for violation of his Fundamental Rights and such publication to be made in at least four print and electronic media respectively with intense National coverage (including the Guardian, Vanguard, This Day, punch, Ray Power, cool F.M. African Independent Television and the Nigeria Television Authority) within one month of the judgment of this Honourable Court.
(5) Damages in the sum of N500,000,000 (five hundred million naira) only against the Respondents jointly and severally for the violation of the Applicants Fundamental Human Rights.
(6) Special damage of N2000,000 (Two Million Naira) only for the Applicants Medical treatment, which is stilt ongoing, of the severe wounds he sustained, repair of his Hondo car valued at N1,450,000 with Registration No. DC 487JJ, confiscation of his wedding Ring valued at N45,000.00 by the Respondents.
I am convinced that the trial court rightly assumed jurisdiction over the suit as the reliefs claimed fall within the provisions of Chapter IV of the 1999 Constitution. They are complaints against infringement of the Applicant’s Fundamental Rights under Sections 33 -34 and 41 as guaranteed under the 1999 Constitution. The trial court is vested with jurisdiction to hear such suit under Section 46 (1) of the 1999 Constitution. It reads thus:
“Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court for redress.” This takes care of Issue No. 2 as formulated by Appellant.
Issue No. four is on whether the Appellant could vicariously liable for the acts committed by 3rd to 10th, 12th and 13th Respondents.
As I have earlier held, the Appellant was not a public officer but the wife of a public officer. However, the 3rd – 10th, 12th and 13th Respondents were public officers. Even from the supporting affidavit of the Applicant (now respondent) the 3rd-10th Respondents were described as agents of the 11th Respondent while the 12th – 13th Respondent were described as agents of the 14th Respondent. It is significant to note that then 11th Respondent was the Commissioner of Police Edo State and the 14th Respondent was Director of State Security Service Edo State.
This is as stated in paragraphs 4-6 of the supporting affidavit of the Respondent.
Even the Appellant was described in paragraph 4 of the said affidavit as agent of the 2nd Respondent who was Edo State Government.
What then is vicarious liability? In IFEANYI CHUKWU (OSONDU) LTD V. SOLEH BONEH LTD (2000) ALL NLR 604,3SC. 42, Ogundare JSC at page 15 had this to say:
“In summary to succeed against a master the Plaintiff must:
1) Establish the liability of the wrongdoer and prove
2) That the wrongdoer is a servant of the master and
3) That the wrongdoer acted in the course of his employment with the master. See YOUNG V. EDWARD BOX & CO. LTD (1951) TLR 789, 793 where Dunning L.J. said:
“In every case where it is sought to make a master liable for the conduct of his servant, the first question is whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servants liability.”
In the light of the above, I have gone through the processes filed by the Applicant (Respondent) and l am unable to see where he showed and proved that the Appellant was the master of the 3rd -10th Respondents and 12th-13th Respondents. I am therefore unable to hold the Appellant vicariously liable for the actions of the 3rd – 10th Respondents and 12th -13th Respondents.
Issues No. 3. 5 and 5 as formulated by the Appellants are heavily dependent on the resolution of Issue No.3 since they are on evaluation of the evidence. I shall now treat Issue No 3 which reads:
“Whether the trial court can validly make findings on material issues of fact contained in conflicting affidavits without calling for oral evidence to resolve the conflicts.”
It is trite law that where there are conflicting affidavits on material issues the conflicts are to be resolved VIVA VOCE by calling oral evidence. See OLU IBUKUN & ANOR V. OLU IBUKUN (1974) ALL NLR 463; FALOBI v. FALOBI (1976) 9 – 10 SC 1; GROUP DANONE & ANOR v. VOLTIC (NIGERIA) LTD (2008) 3 – 4 SC.32.
Were there conflicts on material issues in the affidavits filed before the trial court? The 1st Respondent in his Respondent’s brief identified the live issues in this case as follows:
“(i) Whether the Applicant (now 1st Respondent) was beaten by the Appellant’s convoy team.
(ii) Whether he was arrested and token away from Adesuwa/Sapele Road junction ultimately to Edo
State Government House Premises.
(iii) Whether the Applicant (now 1st Respondent) was charged to court for any offence know (sic) to law or at all.”
The Applicant (now 1st Respondent) in his supporting affidavit filed on 15/11/2010 stated in paragraphs 8 -25 thus:
“(8) That on the 11th day of January 2010 at about 6.30pm and while returning from church service in Winner Chapel the Applicant heard sirens blasting from behind him along Sapele Road by Dumez junction.
(9) That immediately on hearing the blast of the siren the Applicant moved to the right service lane to enable the convoy blasting the siren to pass.
(10) That the convoy the Applicant cleared from the left lane to the service lane for was the convoy of
the 1st Respondent.
(11) That no sooner has the pilot car, the principal car carrying the1st Respondent, the backup car and
the SSS car overtook him that all the SSS car doors were flunged wide open while the car itself swerved from the left lane unto the service lane in a James Bond like style and blocked the Applicant who immediately stepped on his breaks to avoid collision and stopped abruptly by Sapele Road/Adesuwa Road traffic light junction.
(12) That the SSS Officers and the mobile police men in the said vehicle jumped out of the car and rushed towards the Applicant.
(13) That two other vehicles behind the SSS car also stopped and the mobile police men in them also jumped out to join their colleagues and bounced on the Applicant and belabored the Applicant very well using whips, fist and leg boots on him.
(14) That they also whip and leg-booted the Applicant Honda Car and damaged the windscreen, roof
and body in the process.
(15) That when the 3rd to 10th and 12th and 13th Respondents jumped down from their vehicle with various type of cudgels and loaded AK47 guns they rushed towards the Applicant and his wife, both of whom were still seated in their Honda Car.
(16) That the actions of the 3rd to 10th and 12th and 13th Respondents so scarified the Applicant that he tried hastily to wound up the glass windows but forgot to lock the car doors.
(17) That the 1st Respondents escort members jerked the car door open and violently dragged the Applicant out of the car before pouncing on him.
(18) That while they were beating and brutalizing the Applicant with list, whips, boots, teeth bites one of the Respondents shouted “waste him’ “waste him” and immediately Corporal Ifeoma Nwose the 8th Respondent cocked his riffle and before he could aim it, the instinct for self-preservation enabled the Applicant who instantly dived at the said 8th Respondent going for the riffle as he did so.
(19) That as the Applicant dived at the said Ifeoma Nwose, the 8th Respondent, his head hit the 8th Respondent thereby throwing him off balance; this afforded the Applicant the opportunity to reach out to the 8th Respondent’s riffle and smartly controlled the muzzle as the 8th Respondent has started firing, exhausting two bullets in the process.
(20) That he was able, because of his professional training, to remove the magazine from the riffle, which he threw away before disengaging himself from the 8th Respondent.
(21) That immediately the Applicant disengaged himself from the 8th Respondent the Respondents violently bundled and tossed him into one of their Hilux Jeep and drove away with him (with his head pinned down to the floor of the jeep with their boot) to the house of the 1st Respondent where they almost kitted him apart from the beating he received on the way in their Hilux Jeep.
(22) That they used every available weapon to beat the Applicant including teeth bite which he received on his ear, breast and right thumb which was chopped all at the tip by the 8th Respondent.
(23) That when the 3rd to 10th and 12th and 13th Respondent realized that his waling from the beating was not conducive for the 1st Respondent house and environment, they took him away to the 2nd Respondent premises where he had reprieve due to the intervention of a D.S.P, at the 2nd Respondent quarter guard house, whose order to stop beating the Applicant they refuse and/or failed to obey until they were satisfied with themselves.
(24) That the way and manner they rushed at him and started beating him at near Adesuwa Junction in
Sapele Road, Benin City attracted a mammoth crowd of on-lookers who could not intervene because the Respondent were armed with riffles and pistols while they were belaboring him with reckless abandoned.
(25) That the D.S.P. at the quarter guard later gave him the opportunity to phone his superior in office who organized his rescue and was immediately taken to the military hospital for treatment,
The 3rd to 11th Respondents in their counter-affidavit filed on 14/2/2011 stated in paragraphs 5 – 13 thus:
“(5) That paragraph 9 of Applicant’s Supporting Affidavit is false and therefore stand denied as Applicant d serving Army Officer who ought to know better about V.I.P. Guards and Escort fails, neglect and refused to clear off the main road, instead deliberately using his Honda Car to breaking 1st Respondent’s convoy despite blaring of siren heralding just before Adesuwa junction along Sapele Road, Benin City.
(6) That the 1st Respondent’s convoy on that day consist of (1) Pilot Car (2) State Security Service Car (3) Principals Car i.e. 1st Respondent Car (4) a Bock-up Car i.e. spare car (in event principal car breaks down (5) Police Escort (6) followed by another general purpose car.
(7) That paragraph 10 and 11 are false; in that taking into consideration of paragraph 6 above, the length the six or more vehicles (member of public often taken advantage of the convoy as they follow from the rear) that make the convoy occupies on the road could be better imagined.
(b) that no sooner the pilot car passed Applicant and without due care attention to the car i.e. State Security Service car and 1st Respondent car following in that other Applicant swerved bock onto the main lane he was driving before he had the siren.
(c) That in that state, narrowly avoided hitting the State Security Service and 1st Respondent’s cars both who swerved off Applicant’s part.
(d) That as the State Security Service and 1st Respondent speed pass Applicant’s car was now floating between 1st Respondent and Backup car this process amount to a break up of the convoy while effort to prevent Applicant proved abortive.
(8) That this unusual act of the Applicant attracted the attention of Security personnel both in front and rear of the convoy whose main task is to protect 1st Respondent (Principal).
(9) That in specific response to paragraphs 12, 13 and 14 of Applicant’s Supporting Affidavit, that no sooner I got down to the scene and putting a word across, Applicant who was in plain cloth turned to me grab my police uniform, tore same and gave me a head blow on my upper eyelid and blood started gushing out profusely.
(b) Not done yet, he grabbed my service rifle and we started dragging the rifle. In the process he reached out to the corking pin at which state I knew the man was not an ordinary person.
(c) While the dragging lasted, I succeeded to cock the rifle and still dragging, one round was expended i.e. shot the rifle which hit the ground.
(d) The team eventually arrested him and put him into our vehicle only to be identified at the Government House as on Army Officer.
(e) The slight bruises he had was as a result of his combativeness fighting every/all operatives i.e. resisting arrest. Applicant was not whipped nor booted as Respondents do not have any horse whips.
(f) Nothing to show that Exhibit 9 that is a car that was dented is Applicant’s Honda Car with neither its identification number nor the car’s windscreen or roof was damaged as exhibited. Exhibit 9 refers.
(10) That at the close of initial enquiry I was taken to the General Hospital where I was treated and discharged. The doctor who treated me issued a medical report. A copy of the medical report is here annexed as Exhibit NPF ‘C’.
(11) That in specific response to paragraphs 15, 16 and 17 is that they are false therefore stands denied.
(a) That naturally 3rd -10th Respondents are armed but do not carry any other weapon like cudgels. (b) That Applicant having noticed his mistakes hurriedly parked out of the road and jump out of the car invariably awaiting the reaction of 3rd – 10th and 12th – 13th Respondents.
(c) That apart from the official rifle and lawfully issued 3rd-10th Respondents, Respondent never carried whips or any other weapon one wonder why all the Respondents should bit Applicant before arresting him.
(12) That in specific response to paragraph 18 of Applicant’s Supporting Affidavit particularly that 8th Respondent corked his rifle contradicts paragraph 19 where Applicant stated that 8th Respondent’s rifle fired two rounds/bullets.
(b) That reference to paragraph 19 of Applicant’s Supporting Affidavit, it goes to confirm my averment in paragraph 10 of this Affidavit that he tore my police uniform and injured me on my eyelid for which I was treated at General Hospital and discharged.
(c) That when a rifle is corked as stated in Applicant’s averment in paragraph 18 and Applicant removed the magazine as contained in paragraph 20 the rifle cannot fire two rounds of ammunition at once but only round.
(d) That goes to confirm that the Applicant actually grabbed the rifle and dragged it with me.
(13) That Respondents denies paragraphs 21, 22, 23 and 24 of Applicant’s Supporting Affidavit.
(a) Respondent merely use minimum force to arrest Applicant who resisted arrest and in the process assaulted me 8th Respondent.
(b) There was no other weapon with me and others, other than the lawful rifle issued to us.
(c) No one use teeth to bite Applicant. The Injuries he sustained arose from the rowdiness of the situation and he admitted in paragraphs 18, 19 and 20 of his Supporting Affidavit.
(d) That he was taken straight to the 2nd Respondent’s Office and not 1st Respondent he admits this in paragraph.”
The 1st Respondent (now appellant) also filed a counter-affidavit on 30/3/2011 where she strongly denied the depositions in the applicant’s supporting affidavit in paragraphs 4 – 6 as follows:
(4) That paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,42, 43, 44, 45, 46, 47, 48, 49 and 50 are not true and are hereby denied.
(5) That I am informed by Mrs. Endurance Odubu, 1st Respondent herein in our office on 25/03/2011 at about 2pm and I verily believe her that:
(a) On the 11/01/2010 on her way back to Benin from an official assignment along Benin/Sapele Road in a convoy of security personnel, the Applicant suddenly drove from the slow lane to the fast lane of the road; deliberately using his car to break the 1st Respondent’s convoy despite the use of siren by the security personnel in the convoy just before Adesuwa junction;
(b) This was soon after the pilot car drove past the Applicant, the Applicant immediately swerved back to the left lane where he was before thereby obstructing the State Security Service vehicle and that of the 1st Respondent without regard to the security risk involved;
(c) In order to avoid colliding with the Applicant’s vehicle, the State Security Service vehicle along with that of the 1st Respondent had to swerve off the road in order to overtake the Applicant’s vehicle;
(d) This particular act of the Applicant caused d security upheaval and consequently, the convoy was in disarray;
(e) She panicked believing that she was under attack.
(f) The State Security Service immediately drove her away from the scene to safety;
(g) The 1st Respondent fearing she was been attacked had to be whisked off to safety by the pilot car of the State Security Service immediately after the incident.
(h) She did not order the Applicant to be beaten or arrested;
(i) She did not also witness any act of brutality on the Applicant or any other person nor did she support any barbaric act on anyone knowing her status in the State;
(j) She was never at any Board of enquiry set up by the Applicant’s superior officers, neither was she invited.
(6) That the 1st Respondent further informed me and I verily believe her that she was traumatized and suffered both mentally and psychologically as a result of the Applicant’s reckless and insensitive act on the said 11/01/2010.
Going through the various affidavits, it is beyond doubt that there are violent conflicts therein. How does a Judge resolve these conflicts when he has not had the opportunity of observing and assessing the demeanour of each of the parties? How does he know who has spoken the truth without the evidence adduced being it subjected to cross-examination? The conflicts in the affidavits are on the live issues in the suit. I therefore hold that the learned trial Judge erred not to have resolved the violent conflicts on the live issues through oral evidence. I therefore hold that the evidence before the Learned trial Judge was not properly evaluated and justice cannot be said to have been done.
In the circumstance, I resolve Issue No. 1 as formulated by the Appellant in favour of the 1st Respondent while I resolve the other issues in favour of the Appellant.
This appeal succeeds in part. It is hereby allowed. I set aside the orders and Judgment of the lower court as they affect the Appellant. Instead, I find the Appellant not liable and I order the case against 1st Respondent (now appellant) dismissed.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have before now read the draft of the judgment rendered by noble Lord GEORGE OLADEINDE SHOREMI, JCA, He exhaustively dealt with and resolved all the issues in the appeal to my satisfaction, so I completely agree with him.
The appeal largely succeeded, because the appellant (then 1st Respondent) could not have been held vicariously liable for the conduct of the 3rd-10th and 12th-13th Respondents who were not in her employment. The claim against her failed and it is dismissed. Hence the appeal is allowed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I read the draft of the judgment just delivered by my learned brother GEORGE OLADEINDE SHOREMI JCA.
I am convinced the issues in the appeal have been exhaustively considered in the judgment. I have nothing more to add as I am in complete agreement with the reasoning and conclusion therein.
This appeal succeeds in part. It is hereby allowed. I subscribe to the consequential orders in the judgment which I adopt as mine.
Appearances
RICKEY TARFA SAN (ANDREW MALGWI and OLADIPO OSUNOWO with him)For Appellant
AND
C.N. DIKE for 1st Respondent.
LAURETTA ASAKA (MISS) for 2nd, 12th, 13th & 14th Respondents.For Respondent
