NCS BOARD & ANOR v. GAR (2021)

NCS BOARD & ANOR v. GAR

(2021)LCN/15194(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 19, 2021

CA/B/420/2014

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

1. NIGERIA CUSTOMS SERVICE BOARD 2. MR. C. ABUBAKAR APPELANT(S)

And

D. RUDRAKHOSERE HARGAAL GAR RESPONDENT(S)

RATIO

POSITION OF THE LAW ON THE TEST OF “REASONABLENESS” AS TO WHAT IS OF ‘REASONABLE BELIEF” OF COMMISSION OF A CRIMINAL OFFENCE BY WHICH A PERSON CAN BE DEPRIVED OF HIS RIGHT TO PERSONAL LIBERTY

…the test of “reasonableness” as to what is of ‘reasonable belief”, is an objective one. It is usually not what the arresting authority considers reasonable, but whether the facts within their knowledge at the time of the arrest disclosed circumstances from which it could easily have been inferred that the person committed the offence alleged. See the case of EKPU & ORS vs. A.G. (FEDERATION) & ORS (1998) 1 HRLRA 391 AT 419 – 420. PER FREDERICK OZIAKPONO OHO, J.C.A.

POSITION OF THE LAW REGARDING THE ENTITLEMENT OF A PERSON WHOSE ARREST AND DETENTION IS ADJUDGED TO BE WRONGFUL AND UNLAWFUL

Section 35(6) of the Constitution (as amended) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. See the cases of SKYE BANK vs. NJOKU & ORS (2016) LPELR – 40447 (CA); ARULOGUN vs. COP, LAGOS STATE & ORS. (2016) LPELR-40190 (CA). The settled position of the law is that, when once the arrest and detention of a person is adjudged to be wrongful and unlawful, he is entitled to the remedy stipulated by the Constitution. He needs not specifically ask for it. See SKYE BANK PLC vs. NJOKU & ORS (Supra); NEMI vs. A. G. LAGOS STATE (1996) 6 NWLR (PT. 452) 42 AT 55 (D – E); OKORO vs. COP, ENUGU STATE & ANOR (2016) LPELR – 41025 (CA); and ATT-GEN. OF LAGOS STATE vs. KEITA (2016) LPELR – 40163. Perhaps, to make matters worse for the Appellants, at paragraph 10 of their averment in their Amended Statement of Defence and paragraph 13 of their deposition on Oath, the Appellants admitted that they were responsible for the harassment, arrest, detention, remand of the Respondent at Oko prison, so that the regime of humiliation, physical and mental torture, agony anxiety, inconveniences and loss of income of the Respondent referred to at paragraphs 12, 16, 17, 19, 20 and 22 of the Plaintiff’s written deposition on Oath, were caused by the reckless, corrupt and nefarious display of power by the Appellants. See pages 228 to 233 of the records. It is further settled in law that, an unlawful arrest and detention, no matter how short entitles the applicant to compensation. See ARULOGUN vs. COP (Supra). PER FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Federal High Court, Benin Division, Holden At Benin (hereinafter referred to as: “the Court below”) delivered on the 26th day of November, 2013 Coram: A. M. LIMAN, J wherein the Court below entered judgment for the Plaintiff and awarded the sums of N5,000,000.00 (Five Million) Naira as General Damages and N50,000. (Fifty Thousand) Naira cost against the Defendants/Appellants.

The Plaintiff (now Respondent) sometime in 1999 took out a writ of summons against the Defendants (now Appellants) claiming as follows:
a. N5,000,000.00 (Five Million) Naira as General Damages for unlawful arrest, unlawful detention, malicious prosecution, mental agony and torture, infringement of Plaintiffs fundamental human right to liberty and dignity and causing dent on his reputation.
b. $50,000.00 (Fifty Thousand US Dollars) as Special Damages against the 1st Defendant for depriving him from travelling to Chicago, United States of America for a lecture tour while being detained by the 1st Defendant. See page 19 of the record of appeal.

The Appellants on the

15th of April, 2012 filed their Memorandum of appearance and Statement of Defence. The Appellants subsequently amended their Statement of Defence on the 20th of November, 2012. The Appellants contended at the trial that the alleged arrest and detention of the Respondent was done in the exercise of a lawful duty. See paragraph 9 at page 343 of the records.

On the 25th of February, 2013 when this case came up for hearing, the Plaintiff/Respondent gave evidence as P.W.1, while the Defendants/Appellants on the 26th of March, 2013 called DW1 (Folarin, O. T.) as the only witness. The parties on the 27th of May, 2013 adopted their final written addresses, and on the 26th of November, 2013 the learned trial Judge entered judgment for the plaintiff and awarded the sums of N5,000,000.00 (Five Million Naira) only as general damages and N50,000.00 (Fifty Thousand Naira) cost against the Defendants/Appellants.

Dissatisfied with the judgment, the Defendants (now Appellants) appealed the judgment to the Court of Appeal, Benin Division raising two grounds of appeal. See pages 550-553 of the records.

ISSUES FOR DETERMINATION:
The Appellants nominated

two (2) issues for the determination of this Appeal, thus:
1. Whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful, even when the arrest and detention were done in furtherance of the lawful duty to prosecute the Plaintiff for evading payment of custom duty. (Ground 1)
2. Whether the learned trial Judge was right to award the sum of N5,000,000.00 (Five Million Naira) as general damages to the Plaintiff even when the Plaintiff had not established unlawful arrest, detention, mental agony and malicious prosecution or any other acts that impugned his reputation. (Ground 2)

On the part of the Respondent, two (2) issues were also nominated for the determination of this Appeal, thus;
1. Whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful?
2. Whether the learned trial Judge properly evaluated the evidence of both parties before he awarded the sum of N5,000,000.00 (Five Million Naira) as General Damages to the Plaintiff?

A close perusal of the issues nominated across board shows that the issues nominated

by both sides to the dispute, are identical except for reasons of differences in semantics. However, the issues nominated by the Appellant shall be the basis for the determination of this Appeal, due to reasons of comprehensiveness. The Brief of Argument of the Appellants dated the 4-12-2014 was filed on the 10-12-2014 and settled by VICTOR GBONNA ESQ. On the part of the Respondent, his Brief of Argument was dated the 15-11-2018 and filed on the same date but deemed filed on the 7-2-2019 and same was settled by P. E. EWAH ESQ. On the 23-2-2021 at the hearing of this Appeal learned Counsel for the parties adopted their respective briefs of argument on behalf of their clients with each urging upon this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF LEARNED COUNSEL:
APPELLANTS:
ISSUE ONE:
Whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful, even when the arrest and detention were done in furtherance of the lawful duty to prosecute the Plaintiff for evading payment of custom duty? (Ground 1)

In arguing this issue, learned Appellants’ Counsel

submitted that the learned trial Judge was in error to have held that the alleged arrest and detention of the Plaintiff/Respondent was unlawful. This is because, the arrest and detention were done pursuant to the exercise of a lawful duty to prosecute the Plaintiff for evading payment of customs duty. Counsel referred to the learned Authors of the Black’s Law Dictionary, ninth Edition at page 124 on the definition of what a lawful arrest is all about. It was therefore contended by Counsel that any arrests or detention, which does not fall within the definition made by the Black’s Law Dictionary is unlawful. According to Counsel, in the instant Appeal, the Respondent was arrested on the 26th of February, 1997 and charged to Court the following day upon reasonable and justifiable suspicion that he evaded the payment of customs duties. See page 142 of the records. Counsel therefore argued that the Court below was clearly in error when it held that the alleged arrest and detention of the Respondent was unlawful as the Respondent failed to substantiate the unlawful arrest and detention by credible evidence.

Learned Counsel also referred the Court to

Section 35 (1) (a-c) of the 1999 Constitution of Nigeria, as amended and argued that although, the right to personal liberty is a fundamental right guaranteed by the Constitution, it is not sacrosanct as a person can be deprived of his right to personal liberty in a number of circumstances, especially “upon reasonable suspicion of his having committed a criminal offence”.

As far as Counsel is concerned, even the Customs and Excise Management Act, Cap C. 45 LFN, 2004, empowers the Appellants to exercise the duties imposed on the Board and that Section 8 specifically empowers the Officers of the Board whilst carrying out their duties to have and to exercise the same authorities and privileges as are given by law to Police Officers.

Learned Counsel further referred this Court to Sections 23 to 24 of the Police Act, Cap P19 LFN, 2004, and contended that what the Appellants did in relation to the arrest of the Respondent was in accordance with the provision of the said Sections 23 to 24 of the Police Act, Cap P19 LFN, 2004, and therefore cannot constitute an infringement on the Respondent’s right to personal liberty and dignity of human person.

Learned Counsel cited

the case of FAJEMIROKUN vs. C.B.C.I. (NIG.) LTD. (2002) 10 NWLR (PT. 774) 95 AT 98 and contended that for any allegation of breach of fundamental rights to succeed, the Appellant or complainant must place before the Court, all vital evidence regarding the infringement or breach of such rights and that it is only then that the burden shifts to the Respondent. He further contended that, where that has not been done, the trial Court can dismiss the case for being devoid of any merit and in the same token, a person who alleges that he was arrested and detained must prove his claim where the defendant denies the allegation.

Arising from the foregoing, Counsel argued that in the instant Appeal, the Respondent failed to adduce sufficient and credible evidence before the trial Court to establish that his right to personal liberty was infringed upon by the Appellants. It was further argued that the alleged violation of the Respondent’s right to dignity of human person was not attributable to the Appellants and that the Respondent’s reliance on Exhibit 17 was unhelpful. Counsel said that the Exhibit 17 was the alleged hand written invitation purported to emanate from

the Appellants’ office and that, apart from the fact that same was made on a plain sheet of paper, it was also not signed. For this reason, Counsel argued that same ought not to have been attached with any weight or probative value in law. Counsel cited the case of BELLO vs. SANDA (2012) 1 NWLR (PT. 1281) 219 AT 242 – 243.

Based on the foregoing, Counsel also argued that the Respondent failed to prove that the said Exhibit 17 emanated from the office of the 1st Appellant having not been signed and made on the letter headed paper of the Appellants. Counsel also cited the case of NIPC LTD vs. THOMPSON ORGANIZATION LTD. (1966) 1 NMLR 99 AT 104. As a result of the foregoing, Counsel submitted that the alleged arrests and detentions of the Respondents on the 25th June, 1998 at Warri Customs Office and that which allegedly took place on the 16th of September, 1999 were false, but that the one and only incident of arrest was followed with a criminal charge in Court in accordance with the Criminal procedure law. Counsel referred Court to pages 142 -146 of the record. It was further argued by Counsel that the Appellants did not at any time arrest the Respondent

after the charge was struck out for lack of diligent prosecution by the Federal High Court, Benin Division.

All said and done. learned Counsel submitted that the trial Court was in error to have held that the alleged arrest and detention of the Respondent was unlawful, whereas. the said arrest and detention was carried out in pursuit of a statutory duty. Counsel therefore, urged this Court to resolve this issue in favour of the Appellants.

ISSUE TWO:
Whether, the learned trial Judge was right to award the sum of N5,000,000.00 (Five Million naira) as general damages to the Plaintiff even when the Plaintiff had not established unlawful arrest, detention, mental agony and malicious prosecution or any other acts that impugned his reputation. (Ground 2)

In arguing this issue, learned Appellants’ Counsel contended that for a party to be awarded any relief by a Court of law, that party must not only plead with particularity, but also prove by credible and convincing evidence that he is indeed entitled to the relief he seeks. Counsel cited the case of OGBIRI vs. N.A.O.C. LTD (2010) 14 NWLR (PT. 1213) 208 @ 225 in support of this proposition of the

law. Learned Counsel further contended that Respondent herein failed in addition to adduce credible and convincing evidence to entitle him to the award of general damages. Counsel also disclosed that the Respondent failed to call any witness or even his relatives or surety who secured his release on those particular days he alleged he was arrested and detained unlawfully. As far as Counsel is concerned, his failure to do so was fatal to his claims.

Learned Appellants Counsel further contended that, since the Respondent had failed to prove unlawful arrest, unlawful detention, malicious prosecution, mental agony and torture, infringement of his rights to personal liberty and human dignity, there was no actual damage or legal injury to the Respondent and as a result there was no damages suffered by him.

For this reason, Counsel argued that the award of the sum of N5,000,000.00 by the Court below was unnecessary and on the part of the Court below an error of law. The argument of Counsel in this respect is that the lower Court’s finding along that line is not borne out of the evidence adduced at the Court below. According to learned Counsel, contrary to

the findings of the Court below, the Respondent evaded the payment of customs duties. In addition, Counsel contended that there was no nexus between the alleged offence and the Appellants’ since staff of postal service were also involved in the purported arrest and detention of the Respondent.

Learned Counsel also contended that, damages of whatever kind are a function of liability and that where a plaintiff has failed to establish the liability of the Defendant as in the instant case, then such a plaintiff will not be entitled to an award of damages. Counsel cited the case of ANIKE vs. SPDCN LTD. (2011) 7 NWLR (PT. 1246) 227 AT 244.

It was further contended that, the award of damages is also a matter of discretion and that the Court must exercise that discretion judicially and judiciously. Counsel said that, when a Court is called upon to exercise that discretion, it must necessarily weigh the balance of justice between the parties bearing in mind the right of the parties as well. On the question of the exercise of the Court’s discretion one way or another, learned Counsel cited a plethora of decided cases some of which are the cases of

7UP BOTTLING CO. LTD vs. ABIOLA & SONS LTD. (1995) 3 NWLR (PT. 383) 257 AT 285; ACB vs. AJUGWO (2012) 6 NWLR (PT. 1295) 97 AT 130 and UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (PT. 1).

This Court was told that the learned trial Judge in his judgment at pages 548 to 549 of the records agreed with the Appellants that the Respondent failed to prove special damages. The contention of learned Counsel for the Appellants is that the Respondent adduced no cogent or credible, thereby disentitling him to any damages at all. According to learned Counsel, the Plaintiff/Respondent had placed heavy reliance on Exhibits 17 and 18. He said that Exhibit 17 was the alleged hand written invitation purported to emanate from the 1st Appellants’ office, while Exhibit 18 was the Respondent’s acceptance letter to deliver a lecture in the United States of America.

The contention of Counsel is that the letter of invitation (Exhibit 17) and the acceptance letter (Exhibit 18) without more, were bereft of evidence to substantiate the claim for special damages and that there was no other travel documents tendered to show that the Respondent had made arrangements to travel, if truly he

intended to travel. Interestingly, Counsel enthused, that the Respondent had also pleaded in (paragraph 23 of page 119 of the records) of the Amended Statement of Claim that he shall rely, at the trial, on all relevant documents relating to the aborted United States Lecture tour. The attention was therefore drawn to page 259 paragraph 2 of the records, where the part of the acceptance letter by the Respondent read as follows:
“I accept the honorarium as stated in the letter. I shall be looking forward to receiving the travel documents soonest”

The contention of learned Appellants’ Counsel is that, although, the Respondent alleged that he was billed to travel on the 17th of September, 1999 only to be arrested on the 16th of September, 1999 a day preceding the day of his take off, certain details of that trip remain undisclosed. The questions Counsel posed as a result are that:
a. What flight did the Respondent intend to board?
b. Had he made the reservation?
c. Did he intend to travel from Benin-City straight to the United States or from Lagos?
d. What time was the flight?
e. Was there a passport and a visa issued to him to

that effect?
f. Which flight ticket did he book for this trip?
g. What were the expenses incurred in this regard?

Counsel argued that these questions beg for answers and that the yawning gaps created by the scanty and incredible evidence of the Respondent were such that could not be filled by the trial Court; that the Respondent’s case was clearly not supported by any evidence as to have led the trial Court to reach the conclusion it did that the arrest was arbitrary.

It is the further contention of Counsel that it should at least be reasonably expected that an intending passenger who had a day to travel off the shores of the Country to the United States, must have in his possession all travelling documents for the trip and that if that was so, what then stopped him from producing and relying on those documents more especially as he had stated that he intended and was going to rely on them at the trial.

For this reason, Counsel submitted that the Respondent was clearly not a witness of truth and that the trial Court ought not to have believed his story. Counsel further submitted that the law will not presume special damages to

flow or to be inferred from the nature of the act or breach complained of by the Plaintiff as a matter of course. Against this position, Counsel cited the case of EFFIONG vs. A. I. S. & S. LTD (2011) 6 NWLR (PT. 1243) 266 AT 276 – 277 paras. H- A per MIKA’ ILU, JCA where this Court held thus:
“It is trite law that an award of damages either special or general, is not given as a matter of course, but on sound and solid legal principles and not on speculation or sentiment. It is also not awarded at large or out of sympathy borne out of extraneous considerations, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury. In the instant case, the award of general damages made by the trial Court was made in disregard of applicable principles and as such ought to be set aside.”

This, being a civil matter, the Court was reminded of the fact that the standard of proof is on a preponderance of evidence and that the onus was on the Respondent in the instant case since he was the was one alleging that he was arrested and detained unlawfully. Counsel argued that the onus to plead and establish the facts

and adduce credible evidence to substantiate the allegations rested on the Respondent. Counsel referred to Section 131 of the Evidence Act, 2011, as amended.

According to the Counsel, the Respondent needed to prove that his arrest and detention were unlawful and that in the face of the stiff denial by the Appellants, the burden thereby shifted to the Respondent to prove that he was unlawfully arrested and detained for three (3) days which burden the Respondent failed to discharge. Counsel cited the case of TAYLOR vs. OGHENEOVO (2012) 13 NWLR (PT. 1316) 46 and urged this Court resolve this issue in favour of the Appellants.

RESPONDENT:
ISSUE ONE:
Whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful?

In arguing this issue, learned Respondent’s Counsel contended that the Court below was perfectly correct in holding that the arrest and detention of the Respondent was unlawful, because, the arrest and detention were not in pursuance of a lawful duty, rather that, the Appellants were in pursuance of an unlawful duty to conceal the Appellants’ fraudulent and unlawful acts of

stealing and conversion of Federal Government of Nigeria Revenue to their private pockets. Counsel referred this Court to pages 530 to 531 of the records.

Learned Respondent’s Counsel further contended that the Fax Machine that was sent to the Respondent from Chicago, United States of America was assessed by Customs and Excise (the 1st Defendant/Appellant) at N15,000.00 as Duty Charge and that the Respondent protestingly paid the said N15,000.00 as same was considered rather excessive and as the Respondent, secondly had no other option.

According to Counsel and quite contrary to the contention of the Appellants the Respondent was not liable for evading payment of Customs duty as he paid the sum of N15,000.00 he was asked to pay by way of duty by the officials of the Appellants who carried out the assessments before the NIPOST Officials in attendance released the Fax Machine to the Respondent.

Learned Respondent’s Counsel also contended that, it was after the Respondent had paid the duty charged, that he approached the 1st Defendant to find out the basis for such exorbitant assessment for a second-hand Fax Machine, which purchases price in any

Nigerian open market was far less than N15,000.00. According to Counsel, it was to be later discovered to the dismay of the Respondent that Appellants entered or paid the sum of N600.00 (Six Hundred) Naira into the ledger of the NIPOST, out of the sum of N15,000.00 (Fifteen Thousand) paid by the Respondent. The contention of Counsel here is that, the balance sum of N14,325.00 out of the sum of 15,000.00 paid by the Respondent had either at this stage been stolen or embezzled by some of the officials of the Appellants, despite the fact that the Respondent was issued with a receipt or slip for N15,000.00. See page 234 of the records.

Learned Counsel therefore submitted that in the Appellants’ acrimonious resolute and determination to destroy and conceal the only available documentary evidence of the Respondent’s payment of N15,000.00 the Appellants then set up a panel, where they fraudulently demanded and took the original receipt from the Respondent, which they never returned to the Respondent till date. The saving grace, Counsel said was that the Respondent made photocopies of the said receipt before he gave the original through his daughter with a letter

to the said panel. See page 299 at paragraph 11 of the records.

Arising from the foregoing, learned Counsel therefore contended that the arrest and detention of the Respondent by the Appellants ran foul of the proper definition of a lawful arrest. Counsel to this end, referred this Court to the learned Authors of Black’s Law Dictionary, 9th Edition at page 124. Counsel contended that the arrest and detention of the Respondent by the Appellants was without any valid reasons and/or any warrants at all, thus, jettisoning the need for some reasonable or probable cause that the Respondent had committed a crime.

Learned Counsel further contended that the arrest and/or detention of the Respondent on the 26th of February, 1997, and his subsequent charge to the Magistrate Court, which said proceedings was frustrated and truncated by the Appellants in order to conceal their fraudulent acts of stealing and embezzlement of Government Revenue was not any reasonable or justifiable grounds or suspicion that the Respondent evaded the payment of Customs Duty.

On the question of who the onus of justifying the lawfulness of the arrests and detention rests with,

Counsel submitted that the onus fell squarely on the Appellants to justify the lawfulness of the arrest and detention, which they have admitted to have carried out. It was further submitted that it is only when the Respondent denies the allegations that the onus of proof will shift to the Applicant. Counsel cited the case of FAJEMIROKUN vs. C. B. (C.L.) NIGERIA LTD (PT. 193) 593 and argued that in the case at hand, the Appellant had admitted in their averments that they arrested and detained the Respondent in pursuance of a lawful duty and that being the case, it is up to them to justify by way of proof that the said arrests and detention was lawful.

According to learned Counsel, by virtue of paragraphs 10 of the Appellants’ averment in their Amended Statement of Defence and paragraph 13 of their deposition on Oath, that the Appellants admitted that they were responsible for the harassment, arrest, detention, remand at Oko prison, humiliation, physical and mental torture, agony anxiety and inconvenience and loss of income of the Respondent referred to at paragraphs 12, 16, 17, 19, 20 and 22 of the Plaintiff’s written deposition on Oath. See pages 228 to

233 of the records.

Learned Respondent’s Counsel also submitted that the arrest and detention of the Respondent was not in accordance with the procedure permitted by law as contemplated by Section 35(1) (a-c) of the Constitution of Nigeria, 1999, as amended, as the Appellants were in breach of the said Section.

On the relevance of Section 8 of the Customs and Excise Management Act, and Sections 23 to 24 of the Police Act, Counsel argued that the Sections connote legality, fairness, and equity, devoid of arbitrariness and none of which is intended or directed to suppress and cajole an aggrieved citizen into withdrawing or abandoning a well founded and justified complaint as the Appellants as Defendants have done in this case. Counsel urged this Court to resolve this issue in favour of the Respondent.

ISSUE TWO:
Whether the learned trial Judge properly evaluated the evidence of both parties before he awarded the sum of N5,000,000.00 (Five Million) Naira as General Damages to the Plaintiff?

In arguing this, learned Counsel submitted that evaluation of evidence means the assessment of evidence so as to give value or quality to it and

that evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or reasonable preference of one version to the other. It was further submitted that any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Counsel cited the case of U.B.N PLC vs. ERIGBUEM (Supra) at P. 824 Rs 5 & 6.

Counsel also submitted that a trial Court has the duty to:
a. Fully consider the evidence proffered by all the parties before it can ascribe probative value to it.
b. Put the evidence on the imaginary scale of justice.
c. Make necessary findings, and
d. Apply relevant law and come to a logical conclusion.

See the case of U.B.N PLC vs. ERIGBUEM (Supra) at page 844 – 845 paragraphs G – H & A.

As far as learned Respondent’s Counsel is concerned, the learned trial Judge met all the conditions stated here above during his evaluation that led to the award of the general damages of N5,000,000.00 against the Appellants in favour the Respondent.

As far as learned Counsel is concerned, the learned trial Judge took notice of the fact that the police

investigation revealed that the sum of N600.00 was entered into the ledger of NIPOST while the balance of N14,325.00 was either stolen or embezzled by some customs officers. Again, he said that some of the culprits were charged to Chief Magistrate Court and the plaintiff testified for the prosecution as a witness in that case; all of which the Court below took notice of.

Learned Counsel further disclosed that, the facts and circumstances leading to the harassment, arrest, being charged to the Federal High Court and consequent imprisonment are stated at pages 530 – 531 of Records. Counsel added that the Respondent testified as PW1; adopted his deposition on Oath and was cross-examined. He tendered exhibits A – S (see page 532 of Records).

On the other hand, Counsel said that the defendants called Folarin O. T. as their sole witness and that under cross examination he stated that:
During the 1999 he was not employed in the Nigerian Customs and so he could not say much about it at that time.

And that he further stated that he did not know why the Plaintiff was arrested and ended his testimony with the following remarks:
“The man

imported something that he is supposed to pay custom duty on through a parcel post. Well I don’t know how it can put it”.

Counsel next submitted that the Court below carried out a proper detailed evaluation before arriving at his final decision (See pages 539 to 548 of Records).

Learned Counsel referred this Court to page 545, of the record where the Court below stated categorically that:
“I have examined the evidence of PW1, and I am satisfied that it is more probable, more acceptable than the evidence of DW1, whose knowledge of the relevant events is not direct but hearsay, a fact which he clearly admitted under cross examination, almost to the point of perjury. Accordingly, I hold that all the cases cited by the defence counsel are inapplicable to the facts of this case. I accept the Plaintiff’s evidence in preference to the evidence of the defendants”.

Counsel submitted that it is only a proper and detailed examination of the evidence led by the parties and the Exhibits and authorities relied upon by both parties that led the Court below to discover that all the cases cited by the Appellants’ Counsel were inapplicable to the

facts of this case. In submitting further that the Court below carried out a detailed and proper evaluation before he awarded the sum of N5,000,000.00 as general damages in favour of the Respondent. Counsel urged this Court to dismiss the Appeal.

RESOLUTION OF APPEAL:
The facts of this case in a nut-shell is that in 1995 a Fax Machine, Sharp model VX 105 was sent to the Respondent from Chicago, USA for which he got a slip from the post office in his box, P.O. Box 4045 @ NIPOST. Now, when he went to collect the parcel, he was directed to the Customs and Excise Desk, who assessed the parcel and charged him the sum of N15,000.00 as customs duty, which he made payment for and was given an official receipt signed on 4th September, 1993 by one Mrs. V. EHIMON. The receipt she gave to him was torn from the bottom of the DN, so that she retained the rest of the DN. Thereafter, she handed over the Fax Machine to the Respondent.

When later the Respondent discovered that the Fax Machine would cost far less than N15,000.00 in Nigeria, he went back to the Customs Desk at the Post Office to know the basis for such a high assessment. He was asked to put his request in

writing, which he did. Thereafter, a couple of correspondences ensued. However, in response to the invitation from the NIPOST dated the 12th day of September, 1995 he visited the NIPOST, which in turn referred him to the (IIB) NIPOST, where he was asked to make a Statement and in which he maintained that he paid the sum of N15,000.00. In the meantime, while the Respondent was awaiting the Report of the Police Investigation, the men of the Customs attached to the NIPOST kept on harassing him and asking to withdraw his complaints, which he refused.

However, after several visits to the Police for the Report of the investigation to no avail, the Police then charged the matter to Court upon discovering that only the sum of N675.00 was actually recorded as the sum paid by way of customs duty and that the balance sum of N14,325.00 had either been stolen or embezzled by some unknown Customs men. Some of the Customs men were subsequently arrested and charged to the Chief Magistrate Court and the Respondent was invited and he gave evidence for the State.

However, on the 26th day of February, 1997 the Respondent was arrested in his house detained, overnight

and later arraigned before the Federal High Court, while the continued trial of the suspects at the Magistrates Court was put on hold on the orders of the Judge of the Federal High Court. The Respondent was therefore arraigned, remanded in prison custody and released on bail the next day. The charge against the Respondent was however, struck out for want of diligent prosecution.

On the 19th of May, 1998 the Respondent was once again re-invited to attend before the Customs Office in Warri. On the 2nd day of June, 1998 when he reported, there again at Warri he was rearrested, made to make a Statement under caution and released on bail the next day. On the 16th of September, 1999 he was again arrested while in his house by men of the Nigeria Customs led by one Mr. T. A. Ifesiokwu. He was detained in the offices of the Customs for three days, during which period he was threatened with severe consequences if he did not drop his complaints against the Customs,

As a result of the incessant arrests and detention, the Respondent missed a planned journey to the USA where he was billed to deliver a lecture for which he would have earned the sum of $50,000USD.

In addition to this claim, the Respondent claimed damages for physical and mental torture, agony, anxiety and loss of income in an action brought to enforce his fundamental rights to his liberty and dignity of the human person.

In issue one, dealing with the question of whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful, the Appellants sought to justify the arrest and detention of the Plaintiff, now Respondent, on the ground that the arrest and detention were done in furtherance of the lawful duty to prosecute the Respondent for evading payment of Customs duty.

Interestingly, the Appellants were quick to refer this Court to Section 35(1)(a-c) of the 1999 Constitution of Nigeria, as amended and argued that there was no such thing as absolute liberty guaranteed by the Constitution of Nigeria as a person can be deprived of his right to personal liberty in a number of circumstances, especially “upon reasonable suspicion of his having committed a criminal offence”. The question that should perhaps, be addressed at this stage is: whether going by the undiluted, undisputed facts of this

case it can be said that the arrests, detention, physical and mental torture, agony, anxiety and loss of income, which the Respondent was made to experience in the hands of the Appellants are reasonably allowed under any of the circumstances permitted under Section 35(1)(a-c) of the Nigerian Constitution, 1999, as amended? The answer of course is a resounding No.

Here is one clear case in which the Court below cannot under any circumstances be faulted for holding correctly that the arrest and detention of the Respondent was unlawful, because the arrest and detention were not in pursuance of a lawful duty, rather that the Appellants were in pursuance of an unlawful duty to conceal the Appellants’ fraudulent and unlawful acts of stealing and conversion of Federal Government of Nigeria Revenue to their private pockets. Counsel referred this Court to pages 530 to 531 of the records.

Albeit, a serious matter, what all the same seem rather amusing to this Court is the fact that, it was after the Respondent had paid the duty charged that he approached the Custom’s Desk to find out the basis for the rather exorbitant assessment for a worn-out, weather-

beaten second-hand Fax Machine, which purchase price in any Nigerian open market was far less than the sum of N15,000.00, which the Respondent paid by way of Customs duty, that trouble broke out and all hell was let lose. To the bewilderment of the Respondent, it was to be later discovered to his dismay that even the said sum of N15,000.00 paid as Duty never got into the coffers of Government as only the sum of N600.00 (Six Hundred) Naira was posted into the ledgers of the NIPOST, while a whooping sum of N14,327.00 out of the said sum of N15,000.00 (Fifteen Thousand) Naira paid had literally vamoosed into thin air.

The subsequent arrest and detention of the Respondent on trumped-up charges for not paying Customs Duty, as far as this Court is concerned, is nothing but only a face saving device to hide their shame for having been caught pants down for brazenly defrauding the Nigerian people of the actual Revenue, which should have rightly gone into the coffers of the Government but had unfortunately ended up in the private pockets of men of the Nigerian Customs, particularly those on duty on the said date of the payment of the duty charged. The said

subsequent arrest once again, was also meant as a device to intimidate the Respondent who refused to buckle under fear of these enemies of the people and stood his ground in exposing corruption.

Against the backdrop of the foregoing, can it then be said with all sense of modesty that the arrest and detention of the Respondent by the Appellants under the scheme of things be said to be anywhere near what the definition of a proper and lawful arrest is? There is absolutely no convincing this Court that, the arrest and detention of the Respondent by the Appellants was in any way done for the right or valid reasons.

In deciding, however, if only for a brief moment to subject the provision of Section 35(1) of the Nigerian Constitution, 1999, as amended, to a microscopic examination, since the Appellants seem here to have taken solace under the said provision, in buttressing their arguments in support of the illogicality of their claims, that there are no such things as an absolute guarantee of the liberty of the individual, so long as it can at anytime be curtailed under any of the circumstances permitted under the law, it is apposite, perhaps, to state

here that the test of “reasonableness” as to what is of ‘reasonable belief”, is an objective one. It is usually not what the arresting authority considers reasonable, but whether the facts within their knowledge at the time of the arrest disclosed circumstances from which it could easily have been inferred that the person committed the offence alleged. See the case of EKPU & ORS vs. A.G. (FEDERATION) & ORS (1998) 1 HRLRA 391 AT 419 – 420.
Here is a situation in which the arresting officer cannot feign ignorance or lack of knowledge that the Respondent duly paid the Customs duty charged, but also obtained a receipt of payment for the transaction done. There is, therefore no legal foundation for the arrests and detention of the Respondent.

detention of a person is adjudged to be wrongful and unlawful, he is entitled to the remedy stipulated by the Constitution. He needs not specifically ask for it. See SKYE BANK PLC vs. NJOKU & ORS (Supra); NEMI vs. A. G. LAGOS STATE (1996) 6 NWLR (PT. 452) 42 AT 55 (D – E); OKORO vs. COP, ENUGU STATE & ANOR (2016) LPELR – 41025 (CA); and ATT-GEN. OF LAGOS STATE vs. KEITA (2016) LPELR – 40163. Perhaps, to make matters worse for the Appellants, at paragraph 10 of their averment in their Amended Statement of Defence and paragraph 13 of their deposition on Oath, the Appellants admitted that they were responsible for the harassment, arrest, detention, remand of the Respondent at Oko prison, so that the regime of humiliation, physical and mental torture, agony anxiety, inconveniences and loss of income of the Respondent referred to at paragraphs 12, 16, 17, 19, 20 and 22 of the Plaintiff’s written deposition on Oath, were caused by the reckless, corrupt and nefarious display of power by the Appellants. See pages 228 to 233 of the records. It is further settled in law that, an unlawful arrest and detention, no matter how short entitles the applicant to

compensation. See ARULOGUN vs. COP (Supra).

This appeal therefore fails and it is accordingly dismissed. Consequently, the judgment of the Federal High Court, Benin Division delivered in Suit No. FHC/B/CS/722/1999 on the 26th day of November, 2013, Coram: A. M. LIMAN, J is hereby affirmed. There shall be no Orders as to cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment in this appeal, just delivered by my learned brother, Dr. F. O. Oho, JCA. I am in complete agreement with his lordship’s line of reasoning and the conclusions reached by him in the leading judgment which I adopt as mine. I therefore have nothing to add thereto.

The appeal lacks even a jot of merit and I accordingly dismiss it.
I abide by the consequential orders made in the leading judgment, including the order as to no costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lord, Dr. Frederick Oziakpono Oho, JCA had afforded me in advance, a copy of the lead Judgment just delivered, and I am completely in complete agreement with the reasoning and conclusions reached therein. I adopt it as mine. I have nothing more useful to

add to the comprehensive lead judgment. I too hereby dismiss the Appeal. I shall abide by the consequential Orders made in the lead judgment, including the Order as to no cost.

Appearances:

VICTOR GBONNA, ESQ. For Appellant(s)

E. EWAH, ESQ. For Respondent(s)