OCEANIC SECURITIES INTERNATIONAL LIMITED v. ALH. BASHIR OLAIDE BALOGUN & ORS
(2012)LCN/5113(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of January, 2012
CA/IL/4/2010
RATIO
ON THE LEGAL DUTY OF THE POLICE OR INVESTIGATING AUTHORITY TO TAKE RESPONSIBILITY FOR THEIR CONDUCT AND ACTIONS
In the case of PGSS Ikachi us Igbudu (2005) 12 NWLR (pt. 940) 543 at 574, it was held that any complaint made or information given to those interested in investigating a matter (the police) will in the interest of the society be privileged, once there is a reasonable belief that a crime has been committed. In the case of Fajemirokun vs Commercial Bank (Credia Lybnnais) Nig Ltd (2009) 5 NWLR (pt 1135) 558 at 600 it was held:- “Generally, it is the duty of citizens of the 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 duty, unless it is shown that it is done mala fide.” On the legal duty of the police or investigating authority to take responsibility for their conduct and actions in the course of their investigation of complaints given to them by citizens, the authorities are replete on this. In the case of Duru us Nwangwu (2006) 5 SCNJ 394 at 402, it was held:- “It is settled law that where an individual has lodged the facts of his complaint o the police as in this case by way of petition, and the police have there-upon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police. See Sewell vs National Telephone Co. (1907) 1 KB 557; Fajemirokun us Commercial Bank (Credia Lyonnais) Nig Ltd (supra). PER. ITA GEORGE MBABA, J.C.A.
THE POSITION OF THE LAW WHERE A PARTY RELYING ON A DOCUMENT IN AN ACTION FAILS TO PRODUCE THE DOCUMENT AND THERE IS NO PROPER EXPLANATION AS TO HIS INABILITY TO PRODUCE THE SAID DOCUMENT
See also the case of Nigerian Advert Services ltd & Anor v. UBA Plc (supra) where it was held:- “Where a party relying on a document in an action fails to produce the document and there is no proper explanation as to his inability to produce the said document the court may upon his failure to produce it presume that the document, if produced would have been unfavourable to that party by invoking section 149(d) of the Evidence Act.” PER. ITA GEORGE MBABA, J.C.A.
WHETHER THE POLICE HAS BUSINESS IN ENFORCEMENT OF DEBT SETTLEMENTS OR RECOVERING OF CIVIL DEBTS FOR BANKS OR ANYBODY
It has been stated many times that the police has no business in enforcement of debt settlements or recovering of civil debts for banks or anybody. Only recently, in the unreported decision of this Court in the case of Ibiyeye & Anor us Gold & Ors. Appeal No:- CA/IL/M.95/2010, delivered on 7/12/2011, I had cause to scream thus, in my contributory Judgment: “I have to add that the resort to the police by parties for recovery of debts outstanding under contractual relationship, has been repeatedly deprecated by the Court. The police have also been condemned and rebuke, several parties, and for using its coercive powers to breach citizens right and/or promote illegalities and oppression. Unfortunately, dispute all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the police remains at the root of many fundamental rights breaches in our Courts.” (Per Mbaba JCA). See also Yusuf Umar us A.A. Salam & Ors (2001) 7 CHR 413. PER. ITA GEORGE MBABA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
OCEANIC SECURITIES INTERNATIONAL LIMITED Appellant(s)
AND
ALH. BASHIR OLAIDE BALOGUN & 4 ORS Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of H.O. Ajayi J; of the Kwara State High court in suit No. KWS/40M/06, a Fundamental Rights Enforcement matter, delivered on 5/5/2008.
At the lower court, the 1st Respondent was the Applicant and had sought the following Reliefs on pages 10 to 12 of the Record of Appeal:
(a). A declaration that the harassment, arrest and detention of the Applicant, herein on Wednesday 24th May, 2006 at his residence along University of Ilorin Road, Tipper Garage Area, Ilorin, Kwara state by 3rd Respondent, acting as agent of the 1st, 2nd, 4th and 5th Respondents, who directed and gave the order of arrest based on the 5th Respondent’s baseless and false allegation is illegal, unconstitutional and a gross violation of the applicant’s right to dignity of human person and personal liberty as guaranteed under sections 34 and 35 of 1999 constitution.
(b). A declaration that the continued detention of the applicant at state crime branch Lagos State police command following his arrest on Wednesday 24th May, 2006 at the instance of the 5th Respondent is unlawful, unconstitutional and a gross violation of his fundamental human right.
(c). A declaration that the seizure of the Applicant’s Mitsubishi sigma saloon car with Registration Number DE 55 LSR by the 3rd Respondent at the instance of the 5th Respondent on 24th day of May, 2006 is illegal, unconstitutional, unlawful and a violation of the Applicant’s right to property.
(d). A declaration that the continued detention of the Applicant’s Mitsubishi Sigma saloon Car with registration number DE 55 LSR at the 4th Respondent premises by the 3rd Respondent acting on behalf of the 1st, 2nd 4th and 5th Respondents and later moved to Lagos is illegal, unconstitutional, violation of Applicant’s right to property under Section 43 and 44 of 1999 Constitution.
(e). An order mandating the 1st 4th Respondents jointly and/or severally to release forthwith the applicant who is in the custody of 1st 4th Respondents and the Applicant’s Mitsubishi Sigma Saloon Car with Registration Number DE 55 LSR.
(f). N2,000,000.00 (Two Million Naira) damages for unlawful and unconstitutional arrest of the applicant.
(g). N2,000,000.00 (Two Million Naira) damages, for the unlawful and unconstitutional detention of the applicant.
(h). The sum of N5,000.00 PER DAY AS DAMAGES FOR LOSS OF USE OF Mitsubishi Sigma Saloon Car with registration Number DE 55 LSR from 24th day of May, 2006 till when same is released to the Applicant.
(i). Perpetual injunction restraining all the respondents by themselves, agents, privies or whomsoever acting through them or any police officer from further interfering w1h the Applicant’s fundamental … .rights in the illegal and unconstitutional manner.
(j). Such further order or others as this Honourable Court may deem fit to make in the circumstances of this case.
After hearing the application and appraising the submissions of the learned counsel on each side, in a considered Ruling, the learned trial judge held for the Applicant and awarded the sum of Five Hundred Thousand Naira (N500,000.00) only against the 1st to 5th Defendants/Respondents, jointly and severally, being damages to the applicant for his unlawful and unconstitutional arrest. The lower Court awarded another Five Hundred Thousand Naira (N500,000,00) to the Applicant, being damages for the unlawful and unconstitutional detention of the applicant. Also, the sum of Four Hundred Thousand Naira (N400,000.00) only was awarded to the Applicant for loss of use of his Mitsubishi Sigma Saloon Car with Registration No, DE 55 LSR – all to be paid jointly and severally by the 1st to 5th Respondents, (now Appellant and 2nd to 4th Respondents)
The said Respondents were restrained by themselves, agents, privies or whosoever acting through them or any police officer from further interfering with the applicant’s fundamental rights. (See page 194 of the Record). That is the decision the Appellant who was the 5th Respondent at the lower Court, has appealed against, as per the Notice and Grounds of Appeal on pages 195 to 205 of the Record, whereof Appellant sought the following Reliefs:
“(1). Allow the appeal by upturning the judgment of the trial Court and substituting a verdict DISMISSING the applicant’s claim in its entirety.
IN THE ALTERNATIVE
(ii) An Order reducing the general damages awarded for unlawful arrest and detention considerably
(iii) An Order setting aside in, its entirety the damages of N400.000.00 for loss of use of the Mitsubishi Car.”
A brief facts of the case shows that the 1st Respondent (Applicant), businessman and one of the shareholders/Directors of Bamed Printers Nigeria Ltd was arrested on 24/5/2006 by the 4th Respondent, acting as agent of the 2nd, 3rd and 5th Respondents and the Appellant. The 1st Respondent was arrested and humiliated in front of his house at Tipper Garage Area, Tanke, Ilorin, Kwara State for liability of or default of Bamed Printers Nigeria Ltd, who had a Civil contract with the Appellant, to settle the debt. He was detained at the State Crime Branch of Lagos State police Command at Ikeja until the 27/5/2006, when the Respondents at the lower Court (that is, 2nd to 5th Respondent and Appellant herein) became aware of Applicant’s application for enforcement of his fundamental rights, when they released him. His car, Mitsubishi Sigma Saloon, Registration No. DE 55 LSR, was confiscated and taken to the Police Station where it was kept until after two (2) years when the trial judge delivered the ruling.
Applicant was subjected to torture and harassment. He had denied taking the loan or guaranteeing the loan taken by the company which was the cause of his arrest and detention, but showed that the debt of the Company was secured with the Company factory Machines worth N12,500,000.00 not with his Car.
The Appellant had maintained that the 1st Respondent was the Managing Director of the Bamed Printers Nigeria Ltd which entered into a loan agreement with the Appellant; that the Company, through the 1st Respondent issued two cheques as security in fulfilment of the loan conditions; that the cheques, upon presentation, were dishonoured with the inscription of “DAR”; that upon dishonouring the cheques, Appellant reported the matter to the 2nd Respondent (Police) and the 2nd Respondent, on the strength of the report/petition embarked on investigation which led to the arrest and detention of the Applicant; that Appellant’s petition had to do with the issuing of dishonoured cheques. Appellant filed its brief of argument on 28/1/2010 within time and distilled three (3) Issues for determination as follows:-
(i). whether the trial Court was right in the view it took that the Applicant/1st Respondent was arrested based on the debt of the Bamed Printers Nig. Ltd to the Appellant as opposed to issuance of cheques which were dishonoured upon presentation? (Distilled from ground 1)
(ii). Whether the trial Court was wrong in holding the appellant liable for breach of Applicant’s fundamental Rights when the Appellant had valid ground to lodge a complaint against the Applicant and the Appellant did nothing outside the laws of the land? (Distilled from grounds 2, 3, 4, 5, 6, 7, 8, 9 and 13).
(ii). Whether the trial Court was wrong in directing that the Appellant shall jointly and severally pay monetary sums awarded in favour of the Applicant and whether the sums awarded followed settled principles of law on award of damages? (Distilled from grounds 10, 11 and 12).
The 1st Respondent filed his Brief on 24/2/2010 and distilled three issues too, as follows, for determination:
(1). Whether from the facts and circumstances of this case, the learned trial judge was wrong to have held that the fundamental Human Right of the Applicant/1st Respondent to dignity of human person, personal liberty and property was actually breached (Grounds 1, 4 and 5).
(2) Whether having regard to the totality of the materials placed before the lower court, the 1st Respondent actually committed an offence of issuing a dishonoured cheque to warrant his arrest, molestation and detention (Grounds 2, 3, 7, 8 and 9).
(3) Whether having regard to the whole circumstances of the case, the learned trial judge was right to have held the appellant jointly and severally responsible to pay the monetary sums awarded in favour of Applicant/1st Respondent and whether the sum awarded as damages need further proof. (Grounds 6, 10, 11 and 12).
On being served with the 1st Respondent’s Brief, the Appellant filed a Reply Brief on 7/4/2010 and the same was deemed duly filed on 19/1/2011.
The Appeal was heard on 24/10/2011 when the learned counsel adopted their briefs and urged us accordingly. The 2nd to 5th Respondents filed on Brief in this Appeal, but the Appellant filed a notice of withdrawal of the Appeal against the 2nd and 4th Respondents on 7/2/2011 and the same was granted on 19/4/2011. The names of the 2nd and 4th Respondents were accordingly struck out.
The 3rd and 5th Respondents had made attempt to file their brief by filing and application on 21/5/2010 for enlargement of time to do so, but they later applied to withdraw the application on 21/11/2010 and the same was struck out on that date.
I shall consider this appeal on the Issues as distilled by the Appellant, the same being more apt.
Arguing the Appeal, learned Counsel for the Appellant, K.K. Eleja Esq. of Yusuf O. Ali & Co. (who settled the Brief), submitted that paragraph 3 (b) of the grounds upon which the Applicants reliefs were sought (which the trial judge relied upon) did not constitute evidence upon which the trial court could legitimately rely on, to reach a decision on the matter; that the reasons for the arrest of the 1st Respondent was seriously in issue and had to be established by evidence, and so it was necessary for evidence to be adduced on same. He referred us to sections 7 and 8 of the Evidence Act, Cap E 14 of Laws of the Federation, 2004.
Counsel also argued that the trial judge wrong to rely on paragraph 5 of the Appellant’s Counter-affidavit, as there was nothing in the paragraph to support the suggestion that the 1st Respondent was arrested and detained because of the indebtedness of the Company – Bamed Printers Nig. Ltd. to the Appellant. Rather, that the arrest of the 1st Respondent had to do with the issuance of dishonoured cheques – Exhibits OC2 and DC3.
Counsel submitted that, as appellate court, this court will readily interfere with and upturn erroneous findings of the trial court and substitute a different judgment for it, where, especially, the erroneous finding is material to the conclusion reached by the trial court and the same has occasioned a grave miscarriage of justice. He urged us to so hold in this case and relied on the case of Gbafe vs. Gbafe (1996) 6 NWLR (Pt.455) 417 at 428.
Counsel added that paragraph 4 of the further affidavit of the 1st Respondent was also not helpful to sustain the conclusion by the learned trial judge. Appellant relied on the counter affidavit by one ASP Godwin Yagah, paragraph B thereof, to say that 1st Respondent was arrested for issuing dishonoured cheques. He further relied on the case Baridam vs the State (1994) 1 NWLR (Pt.320) 50 at 260; Nunrodim vs Ezeani (1995) 2 NWLR (Pt.378) 448 AT 467.
On Issue 2, Counsel submitted that the trial Court was in palpable error in finding the Appellant liable as it did, and also in its view that there was no justification for the Appellant to report to the police about the offence of issuing dishonoured cheques against the 1st Respondent. He emphasized that the 1st Respondent was the sole signatory to the cheques which were dishonoured, and that was why the Appellant wrote the petition to the police. He relied on paragraphs 5(v) to (ix) of their, counter affidavit and added that the 1st Respondent did not deny issuing the cheques. Counsel also relied on the counter affidavit of the 2nd to 4th Respondents to say that the 1st Respondent was arrested on allegation of commission of offences of issuing dishonoured cheques and threat to life, as shown in pages 114 – 115 of the Record; he said that failure of the 1st Respondent to deny or controvert the deposition in paragraph 5 of the Appellants counter affidavit (on the issuance of the – cheques) leads to the irresistible conclusion that he did in fact, issue the cheques which were dishonoured upon presentation. He relied on the case of I.M.B, (Nig.) Ltd vs. Dabiri (1998) 7 NWLR (Pt 533) 284 at 299; Edokpolor & Co. Ltd v. Ohenhen (1994) 7 NWLR (pt. 374) 736 at 746; T. L. Owosho v. HA Dada (1984) 7 C 49.
Counsel also relied on Section 1 and 2 of Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation, 2004, which makes it an offence for any person to obtain credit for himself or any other person, by means of a cheque that, when presented for payment not later than 3 months after the date of the cheque, is dishonoured to the credit of the drawer of the cheque in the bank on which the cheque is drawn, and imposes panel sanction of imprisonment for 2 years for a natural person and a fine of not less than N5,000.00 for a corporate body; that in the face of the said law, there was a prima facie reason to believe that an offence had been committed by both the 1st Respondent and his Company; showing that the Appellant had every justification to report or lodge a complaint with the police. He relied on the case of SEWELL v. NATIONAL TELEPHONE COMPANY LTD (1907) 1 KB, 557.
Counsel submitted that a person would not be held liable for merely reporting or writing a petition to the police for a certain act of crime to be investigated; that liability will only attach to such a conduct if the complainant did more than lodging the complaint. He relied on the case of NWANGWU VS DURU (2002) 2 NWLR (Pt.751) 265 at 282 – 283; that the police have the inherent discretion to decide on whether or not to investigate the complaint or not and the issue of arrest and detention is entirely the police decision. He relied on the case of Fawehinmi Vs IGP (2002) 7 NWLR (Pt.769) 608 at 670 – 677; P.G.S.S. IKACCHI v. IGBUDU (2005) 12 NWLR (Pt.940) 543 of 574.
Counsel submitted that the 1st Respondent did not show that the Appellant did anything more than just making a complaint to the police on the issuance of the dishonoured cheques. He referred us to the case of FAJEMIROKUN VS CB. (CL) (NIG,) LTD (2002) 10 NWLR (Pt.774) 95 at 111-112, where it was held that applicant has a duty to establish instigation and causing of his arrest and detention; that the 1st Respondent did not prove this.
He submitted that the trial Court was wrong to hold that the dishonoured Cheques (Exhibits 0C2 and 0C3) were presented for payment outside of the time; that a glance at Exhibit 0C3 (on page 43 of the
Record) would reveal that it was dated 5th December 2004 and presented for payment on 28th January 2005, a period of 2 months. He also submitted that the views expressed by the Court as to the meaning of the inscription ‘DAR’ written on the cheques, are not supported by any authority of the appellate Court that for the trial Court to say that there was nothing before the Court that gamed Printers Nig. Ltd has presented a dishonoured cheque as contained in page 190 of the Record is an avoidable academic exercise, since the 1st Respondent never led evidence to show, that at all relevant times, the account on which the cheques were drawn was in funds.
On Issue 3, counsel submitted that the trial court was wrong to have ordered Appellant to pay any damages at all, jointly and severally with the other respondents; that there is no relationship of master and servant or agency between Appellant and the other Respondent. Moreover, counsel submitted that the alleged unlawful arrest and detention of 1st Respondent and his car was the act of the other Respondents, not of the Appellant.
He also submitted that by law, damages will only be awarded where there is justification for it; that no legal justification has been shown to warrant making the order against the Appellant. He relied on the case of NICON Hotels Ltd us NDC Ltd (2009) 12 NWLR (pt 1051) 237 at 268.
On the quantum of damages awarded, counsel submitted that the award was high and excessive to warrant the intervention of appellate court to reduce it that is if we find that the 1st Respondent was entitled to damages at all. He relied on the case of Soleh Boneh Oversea Nig Ltd v. Ayodele (1999) 1 NWLR (pt.99) 549.
On the award of N400,000.00 for loss of use of his (1st Respondent) Car, counsel submitted that the that court was in grave error to have awarded that head of claim; that the award was not supported by the claim adumbrated on the motion on notice by the 1st Respondent; that the 1st Respondent had claimed N5,000.00 per day as damages for loss of use of the car, from 24/5/2006 till when same was released to him, and so the same was in form of special damages which must be proved strictly after having pleaded with particulars. He relied on the case of Abrabambi v. A.B.I. Ltd (2005) 19 NWLR (pt.959) 1, saying that throughout the affidavit by the 1st Respondent and his wife, no fact was deposed in support of the claim for N5,000.00 per day as damages for the alleged wrongful detention of the car; thus, there was no evidence to support the claim of N5,000.00 per day; that the trial Court, without stating the basis for it, merely ordered:
‘It is also hereby ordered that the 1st – 5th Defendants/Respondent pay as damages the sum of N400,000.00 (four Hundred Thousand Naira) only to the Applicant for toss of use of his Mitsubishi Sigma saloon car with Registration No. DE 55 LSR”
Counsel submitted that there was no basis or yardstick for arriving at the said sum of N400,000,00 awarded to the 1st Respondent for alleged loss of use of the Car; that the award was speculative and offends the principle for award of special damages. He relied on the case of IMANA VS. ROBISON (1979) NSCC (VOL. 12) 7 at 77; OBASUYI VS. BVL (2000) 12 WRN 112 at 136. Counsel added that a court is not a charitable organization and is precluded from granting that which was not sought by a party. He relied on Ekpenong us Nyong & Ors (1975) 2 SC 71; Edoho us AG (Akwa Ibon state) (1996) 1 NWLR (pt 425) 488 at 500; Udensi us Odusote (2004) All FWLR (Pt215) 577 at 387 – 388.
Counsel urged us to resolve the 3 issues in favour of the Appellant and allow the Appeal.
In his reply, the 1st Respondent, though his counsel, S.A Bamidele Esq (who settled the brief), on the 1st issue, said that going by-the facts and circumstances of this case the learned trial Judge was right and in order to have held that the fundamental Human Rights of the 1st Respondent was actually breached; that the Appellant was out to force the 1st Respondent to offset the debt owed by the Company (Bamad Printers Nig Ltd); that it was the belief of the Appellant that since the Respondent was one of the directors of the company owing the debt, he should be held responsible for it, whereas an incorporated body, like the company, was a separate and distinct person from its share holders and directors and no personal liability for any debt incurred by-the company is chargeable on the director/shareholder. He relied on AIB VS LEE & TEE IND (2003) NWLR (pt 879) 366 at 395.
Counsel added that the alleged debt of the company had been secured by the debtor (company) with 3 of its machines worth N12,500,000.00 as was the finding of the trial Court on page 169 of the record. Counsel relied on paragraph 3 (b) of the statement of the Applicant in support of the application, and submitted that in an action for enforcement of fundamental rights, it is the statement of facts incorporating the grounds upon which the reliefs are sought together with the accompanying verifying affidavit that the Court will look at in arriving at its decision, and issues are fought and determined on affidavit evidence; thus paragraph 3 (b) of the applicant’s statement, read together with applicants verifying affidavit constituted evidence for the Court to act.
Counsel added that the failure of the Appellant to exhibit or disclose the petition it wrote to the police to show why it sent the police after the 1st Respondent, should be presumed against the Appellant pursuant to section 149 (d) of the Evidence Act. He relied on the case of Nigerian Advert Services Ltd & Anor vs UBA Plc (2005) All FWLR (pt 284) 275 at 290; Federal Mortgage Finance Ltd us Hope Effiong Ekpo (2009) All FWLR (pt 248) 1667 at 7684, where it was held:
“Where a party relying on a document in an action fails to produce the document and there is no proper explanation as to his inability to produce the said document the Court may upon his failure to produce it presume that the document if produced would have been unfavourable to that party by invoking section 149(d) of the Evidence Act.”
Counsel urged us to hold that the argument that Appellant wrote the petition to the police on the ground of issuance of dishonoured cheques is an afterthought, and relied on paragraph 5 of the Appellant’s counter affidavit, which he said should not be read in isolation. Counsel also relied on paragraph 3 of the verifying affidavit by the 1s Respondent’s wife which said that she was told by the policemen that they came to arrest and detain the Applicant (her husband) on the instruction of 1st to 5th Respondents on the mortgage transaction between Bamed Printers Nigeria Ltd and 5th Respondent that this averment was not denied by the police. 1st Respondent also attacked the averment of the ASP Godwin Yagah (paragraph 8 thereof) on behalf of the police, saying that it was the 4th Respondent, sergeant Chinedu Nwaorisha, who led the investigation team from Lagos had refused or failed to say anything about the Applicant’s application; thus, the said ASP Godwin Yagah’s paragraph B of the counter affidavit offends section 89 of the Act, as he did not disclose the source of the information he was deposing to; 1st Respondent’s counsel also questioned the basis of detaining Applicant’s car for 2 years by the police, if the arrest and detention had nothing to do with the debt owed to the Appellant! What had issuing of dud cheques got to do with impounding of Applicants car and keeping it for 2 years?
On the wrongful seizure or acquisition of citizens property counsel urged us to follow the holding of Fabiyi JCA (as he then was) in the case of Ajoku vs A.G River State (2006) All FWLR (PT. 312) 2147 at 2166-2167-
“The right to legitimately own property as done by the Appellant herein is not only backed by the constitution it may be said that the right which is one of the unalienable rights, is as old as man. If a citizen’s property must be acquired, such must be with adequate and due compensation. A citizen should not be deprived of his bona fide property without following due process.”
Counsel further relied on the case of Baridam v. The State (supra); Nunradim us Ezeani (supra) to say that arresting the Applicant with his car and detaining them (and the car for 2 years) was oppressive.
On the 2nd issue, counsel submitted that going by depositions in the lower Court vis-a-vis the annexure marked Exhibit OC1, the said allegation was baseless; that although Appellant made a heavy whether of allegation of issuing of cheques which were dishonoured on presentation, the 2nd to 5th Respondents acted excessively, assuming (without conceding) there was really the issuance of dishonoured cheques by the Applicant; that while there is a right to lodge complaint with the police, such complaint must be genuine and not with malice.
Counsel submitted that by paragraph 5 (v) and (vi) of Appellant’s counter affidavit, the two cheques were presented on the 14th and 28th – January, 2005 respectively, whereas by Exhibit OC1, d letter written to 1st Respondent’s company notifying him of Appellant’s intention to present the two cheques, latest by 30/1/2005, Appellant by conduct had put itself bound by the said date of 30/1/2005, and the letter was written on 14/1/2005; thus, Appellant presented the two cheques before the date agreed; that by the agreement of the parties the cheques were not to be presented before 30/1/2005; that presenting the cheques on 14h and 28th January 2005 was deliberately done against the run of events to create grounds for the arrest of the applicant, and that amounted to outright breach of agreement. counsel submitted that by Exhibit OC1, Appellant’ by virtue of section 151 of the Evidence Act was estopped from presenting the cheques until 30th January 2005.
Counsel therefore submitted that Exhibit OC2 and OC3 were not dishonoured, rather they were not due when they were presented for clearing (in view of the Exhibit OC1); that the fact that ‘DAR’ was written on the cheques does not infer criminality in law; that the rules of Dishonoured cheques Act had not been breached, especially as the cheques were not presented for payment three months from that date of issue, and there was no proof that there was insufficient money in the account! Counsel relied on section 1 (1) of the Dishonoured Cheques (offence) Act, cap D11 Laws of the Federation of Nigeria, 2004 and on the case of Faysal Harb & ors vs FRN (2008) All FWLR (pt.430) 705 at 730. where the Act was interpreted as follows:-
“The provisions of section 1 (3) of the Act provides that a person shall not be guilty of an offence under the law, if he proves to the satisfaction of the court that when he issued the cheque he has reasonable ground for believing and did believe infact, that it would be honoured if presented for payment within the period specified in subsection (1) and which period is three months.” (Underlining for emphasis)
Thus, counsel submitted, it would be oppressive and wrong to hold the Applicant responsible for issuing dishonoured cheques in the circumstances, when from the face of it, the three months period for the presentation of the cheques had not lapsed (that is, if the Applicant were the be held responsible for the cheques of the company).
Counsel further submitted that the inscription ‘DAR’ means “Drawer’s Attention Required’ to clarify certain anomalies such as signature on the cheque, misspelling of names, wrong account number on the cheque etc; whereas R/D inscriped on a cheque means ” Return to Drawer” and is a complete rejection of a cheque on ground of either non availability of fund or insufficient fund in the account, and that was not the situation in this case. He relied on the case of Abhubiojo us ACB Ltd (1966) LLR 156 ans Adeleke vs NBN Ltd (1978) 7 LRN 99. Thus counsel said, the writing of DAR’, on the cheques did not mean that the cheques were dishonoured, and that is a point of law not fact.
On issue 3, counsel for the 1st Respondent submitted that having regard to the whole circumstances of the case, the trial Court was right to have held the Appellant with the other Respondents jointly and severally responsible for the breach of 1st Respondent’s fundamental Human Rights, having regard to the arrest, harassment and detention of the 1st Respondent, based on the frivolous and/or fictitious complaint/petition of the Appellant, based on a debt owed by the Applicant’s company.
Counsel adopted his earlier submission under issue 2 to issue 3 and added that Appellant and 2nd to 5th Respondents could not escape liability, because there was no justification for the arrest and detention of 1st Respondent and his car.
He submitted that the issue of lack of agency relationship between the Appellant and the other Respondents did not arise, as what is on ground has nothing to do with such relationship; rather, it was the malicious complaint of the Appellant that caused the 2nd to 5th Respondents to go against the 1st Respondents, and acted outside their statutory duties (to please the Appellant). He relied on section 35 (5)(a) and (b) of the 1999 Constitution and on the case of COP (Ondo State) us Obolo (1989) 5 NWLR (pt.120) 130 at 138; Abiola us FRN (1995) 7 NWLR (pt 405) 1; Madiebo v. Nwankwo (2002) 1 NWLR (pt 748) 426 at 433.
Counsel further submitted that the Court is always prepared and will be quick to give relief in form of award of damages against any improper use of power or any abuse of power by any member of the executive, the police or any other person which results in unlawful detention of an applicant. He relied on the case of John Falade us A.G Lagos State & Ors (1981) 2 NWLR (pt ?) 778 at 784-785; Isenalumhe us Joyce Amadin (2001) 1 CHR 456 at 466. He also relied on section 35 (6) of the 1999 Constitution which says that:-
”Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person”
On the quantum of damage, counsel said that the amount awarded was not even adequate considering the status of the 1st Respondent and – the nature of treatment the Appellant and other Respondents gave to him in detention and when he was arrested. He relied on paragraphs C, D, and of the grounds upon which the reliefs were sought. He urged us not to interfere with the damages awarded by the trial Judge. On the amount awarded for loss of use of the car (N400,000.00), 1st Respondent urged us to take cognizance of paragraph O of the grounds on which relief were sought, which he said -stated how the 1st Respondent came to N5,000.00 per day as damages; that he used the car to carry his children to school, hence he has to hire a vehicle at the cost of N5,000.00 per day to do the same work the Mitsubishi Sigma Saloon Car ought to do for his children.
He added that the sum awarded (N 400,000.00) was even below what the 1st Respondent asked for the loss of use of the car. He prayed that we resolve all the three issues in favour of the 1st Respondent and dismiss the appeal.
Appellant’s reply brief, in the main, is a reinforcement of his arguments in the Appellant’s brief. On the counter affidavit by ASP Godwin Yagah, counsel submitted that the deponent had stated that he was the Divisional Crime Officer (DCO) and that he was conversant with the facts of the case by virtue of his Position.
On the point that the seizure of 1st Respondent’s car by the police also buttressed the fact that Applicant’s (1st Respondent) arrest was in connection with the debt by his company- Bamed Printer Nig Ltd and not because of issuance of dud cheques, the Appellant counsel submitted that the argument cannot stand, having regards to the powers of the police under the police Act and the latitude of their imbued discretion to investigate, prevent, detect and control crime.
On the 1st Respondent’s argument under issue 2, counsel said all the argument were mere academic exercise.
I think it will be proper to consider the issues 1 and 2 together as they are closely related. Was the trial Court right to hold that the 1st Respondent was arrested based on the debt of Bamed Printers Nig Ltd to the Appellant, being a company the 1st Respondent had share and was director or managing director, as opposed to the claim of issuance of dud cheques?
Was the trial Court right in holding the Appellant liable jointly and severally with the other Respondents (Police) for the breach of 1st Respondent’s fundamental rights because of the complaints Appellant lodged with the police against the 1st Respondent?
The Appellant had claimed that it made a simple complaint/petition to the police against the 1st Respondent for issuing cheques (Exhibit OC2 and OC3) to it, which on presentation to the bank were dishonoured, as the bank marked on the cheques ‘DAR’ and the value not paid to it; that they had a right and a duty to report that act by the 1st Respondent (who signed the cheques) to the police for investigation; that it had earlier written Exhibit OC1 to the 1st Respondent’s company, warning them of the consequences of the cheques being dishonoured on presentation; that apart from just lodging the complaint/petition the Appellant did nothing more and the police had a discretion to investigate the complaint or refuse it, and whatever the police did in the course of investigating the complaint was their own act, as there is no agency relationship between the Appellant and the police, and Appellant has no control over the police.
That was a beautiful argument that would excuse the action of the Appellant, if the complaint/petition it made to the police was, in truth, just a complaint of issuing dud cheques, and not motivated by mischief. Every citizen has a right and, in fact, a duty to report any infraction of the law or commission/suspicion of commission of crime to the police and the police too have corresponding right and duty to investigate the complaint/report, in the course of their statutory duty to detect and fight crime.
In the case of PGSS Ikachi us Igbudu (2005) 12 NWLR (pt. 940) 543 at 574, it was held that any complaint made or information given to those interested in investigating a matter (the police) will in the interest of the society be privileged, once there is a reasonable belief that a crime has been committed.
In the case of Fajemirokun vs Commercial Bank (Credia Lybnnais) Nig Ltd (2009) 5 NWLR (pt 1135) 558 at 600 it was held:-
“Generally, it is the duty of citizens of the 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 duty, unless it is shown that it is done mala fide.”
On the legal duty of the police or investigating authority to take responsibility for their conduct and actions in the course of their investigation of complaints given to them by citizens, the authorities are replete on this. In the case of Duru us Nwangwu (2006) 5 SCNJ 394 at 402, it was held:-
“It is settled law that where an individual has lodged the facts of his complaint o the police as in this case by way of petition, and the police have there-upon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police.
See Sewell vs National Telephone Co. (1907) 1 KB 557; Fajemirokun us Commercial Bank (Credia Lyonnais) Nig Ltd (supra).”Was Appellant’s petition against the 1st Respondent in this case an innocent report of commission of offence or of suspicion of same?
Unfortunately, Appellant did not disclose the content of the petition ‘it wrote to the police to show the actual reason it stated to move the police against the 1st Respondent and this raises the presumption under section 149(d) of the Evidence Act against the Appellant. See also the case of Nigerian Advert Services ltd & Anor v. UBA Plc (supra) where it was held:-
“Where a party relying on a document in an action fails to produce the document and there is no proper explanation as to his inability to produce the said document the court may upon his failure to produce it presume that the document, if produced would have been unfavourable to that party by invoking section 149(d) of the Evidence Act.”
Applicant in his statement at the lower court had pleaded in paragraph 3(b) of the grounds in support of his claim that:
“On Wednesday, 24th day of May 2006, three policemen led by Sgt Chinedu Nwaorisha came from Lagos state crime branch command to arrest the Applicant at his residence at University of Ilorin, Kwara state on the complaint that he did not pay the debt his company (Bamed printers Nig Ltd) owed to oceanic securities International Limited which has fallen due for payment”.
The averment therein was enforced by affidavit evidence of the wife of the 1st Respondent which she made to verify the said statement.
Paragraph 2 and 3 thereof state:
“2. That I was at home at University Road, Tipper Garage Area, Tanke, Ilorin Kwara state on 24th May, 2006 when the to Respondent, in company of two other policemen who claim (sic) to have come from Lagos arrested the Applicant, who is my husband.
3. That as i could gather from the said policemen, they came to arrest and detain my husband on the instruction of the 1st and 5th Respondents (supported with 2nd and 4th Respondents) on the mortgage transaction between Bamed Printer (Nigeria) Limited and the 5th Respondent.”
See also Applicants further affidavit of 8/12/2006 paragraphs 4 thereof, pages 120-121 of the Record.
Appellant’s counsel had argued that there was no evidence to support the allegation that Applicant was arrested because of the debt owed by Bamed printers Nig Ltd to the Appellant. He was wrong as the averment of the wife of the Applicant was sufficient evidence to support and establish the fact in the statement of the Applicant. That is the essence of a verifying affidavit under the Fundamental Rights Enforcement Rules, to verifying the facts in the statement of Applicant. And, of course, where such evidence is not denied or sufficiently countered or controverted, the court is bound to rely on it and use it.
In the case of Magnusson us Koiki & Ors (1993) 12 SCNJ 114 held 5, the Apex Court held that:-
“Averments of facts on pleadings must be distinguished from facts deposed to in an affidavit in support of application before a Court.
Whereas, the former, unless admitted, constitutes no evidence, the latter are by law evidence upon which a Court of law, in appropriate cases/ can act.”
Also so in H.S Engineering Ltd vs S.A. Yakubu Ltd (2009) 175 LRCN 134, held 2 it was said that “It is now settled law that an affidavit indeed admitted.” See also Ajomate us Yaduat (1991) 5 SCNJ 178; Hon Maryati Audu Dogari & Ors v. A.G Taraba State (an unreported decision of this Court) in CA/J/243/2010.Appellant did not deny the averments of the Applicant on the reason for his arrest, though it (Appellant) strongly advanced its own version of why the arrest was effected, being issuance of cheques which it said were dishonoured at presentation by the bank. Paragraph 5 (i) to (ix) of the Appellant’s counter affidavit pleaded the transaction which it had with Bamed printers Nig Ltd and the cheques issued by the company as security for some loan transaction; paragraphs 5(i), (iv), (v) and (vii) are reproduced below:
“(i) That the plaintiff/Applicant is the alter ego and managing Director Bamed Printers Nig Ltd.
(iv) That the 2(two) cheques aforementioned were issued and signed by the plaintiff/Applicant on behalf of and as Managing Director and alter Ego of the company.
(v) That on maturity of the loan facility granted to the company, the 5th defendant/Respondent wrote a letter dated 14h January 2005 to the company informing her that the 2(two) cheques would be presented for clearing an or before 30th January 2005. A copy of the 5th Defendant/Respondent letter dated 14th January 2005 is annexed hereto as Exhibit OC1.
(vii) That this act of dishonour of the cheques by the bank, I believe constitutes an offences (sic) under section 1 (1)(b) of the Dishonoured Cheques (Offences) Act, Cap D11, Laws of the Federation of Nigeria, 2002.”(see pages 37 to 39 of the record).
The content of the Appellant’s letter (Exhibit OC1) to the 1st Respondent’s company is quite revealing, as published on page 41 of the Record of appeal. It was addresses to the Chairman/Managing Director Bamed Printers Nig Ltd.
“Attention: Alh B.O Balogun:
RE OUTSTANDING PAYMENT ON WAEC LPO FACILITY…”
Paragraphs 2, 3 and 4 of the letter respectively state as follows “As you will recall you have issued two Oceanic Bank Cheques for N1,456,000.00 and N1,562,253.36 respectively, to liquidate the total outstanding debt with interest as at 5th December 2004.
It is surprising that you have failed to redeem these cheques as promised.
As directed by our Auditors, please be informed that we are presenting these cheques for clearing if we do not hear from you on or before 30th January 2005, should the cheques bounce, we shall have no alternative than to inform the appropriate authorities.” (Emphasis mine)
Surprisingly, after giving the company up to 30th January, 2005 to liquidate the debt before presenting the cheques, Appellant, acting against the understanding in that letter proceeded to present one of the cheques on the very date it wrote the letter, that is 14th January 2005, and the 2nd cheque on 28th January, 2005.
By its own very admission, the Appellant, in that letter, revealed that there was understanding between the 1st Respondent’s company and the Appellant that the cheques should not be presented before 30th January, 2005. For the Appellant to have presented the cheques for clearing on 14th and 28th January, 2005 (before the 30th January, 2005 impliedly agreed upon) it was acting in breach of that faith, and done in mischief, to blackmail the 1st Respondent and the company, and create grounds for his arrest and detention.
That means the report/petition by the Appellant to the police was actuated by malice and the sole motive was to use the police to recover the outstanding debt, contrary the claims of the Appellant. Thus, the presentation of the cheques before the agreed date was a set up to ground the arrest of the 1st Respondent, whose attention had been called in the Exhibit OC1. That was an evil scheme! No wonder then the Appellant’s refusal to exhibit or disclose the content of petition it wrote to the police.
By section 151 of the Evidence Act, the Appellant was estopped from presenting the cheques for clearing before 30th January, 2005. That law says: –
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such, person’s representative in interest, to deny the truth of that thing.”
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 detention of his car (for two years) and escape the wrath of the law. He was pursuing the recovery of the alleged debt and resorted to the use of the police!
What was the connection of the seizure of the 1st Respondent’s car and keeping it for 2 years with the alleged issuance of dud cheques, if Appellant’s interest was devoid of recovery of debt? And how was a corporate of a limited liability company tied to its machines as security’ suddenly becomes the personal debt of the 1st Respondent to warrant the ordeal meted out to him?
There was no way the pretence and dishonesty of the Appellant could be covered in the circumstances as the eagle eye of the law saw through its mischief and unlawful attack on the 1st Respondent, when the company (Bamed printers Nig Ltd), which owed the debt was not running away from its responsibility and had had understanding with the Appellant up to 30th January, 2005 to liquidate the debt, according to Exhibit OC1.
By the Dishonoured Cheques (Offences) Act, which the Appellant sought to rely on “the provisions of section 1(3) of the Act provides that a person shall not be guilty of an offence under the law if he proves to the satisfaction of the court that when he issued the cheques, he had reasonable ground for believing and did believe, infact, that it would be honoured, if presented for payment within the period specified in sub section (I) and which period is 3 months,” See the case of Faysal Harb & ors vs FRN (2008) All FWLR (pt 430) 705 at 730.
Of course, the 2 cheques were within their 2nd months of issue when the Appellant presented them for clearing against the run of the agreement they had.
Can it also be said that the inscription ‘DAR’ written on a cheque by a bank, on presentation, means that the cheque is dishonoured and that there is no money in the account of the drawer? That cannot be so, except there is concrete evidence to the effect that such inscription connotes such meaning or inference.
Ordinarily, the inscription ‘DAR’ is an acronym usually interpreted to mean DRAWERS ATTENTION REQUIRED. Of course, the drawer’s attention can be required by a bank for myriads of reasons, for example to explain some things before a cheque is cashed, mostly to protect the interest of the customer (drawer) and the Bank. It would therefore be wrong for the drawee to run to town with the evil news that the cheque has been dishonoured simply because the cashier or accountant of the bank has written ‘DAR’ on the cheque.
I hold that the learned trial judge was right in his findings and conclusion that Appellant employed the 2nd to 5th Respondents to recover-a secured debt of the Bamed Printers Nig Ltd from the 1st Respondent, when it unleashed the police against the 1st Respondent, and they arrested and detained him and his car, against the dictates of the law.
It has been stated many times that the police has no business in enforcement of debt settlements or recovering of civil debts for banks or anybody. Only recently, in the unreported decision of this Court in the case of Ibiyeye & Anor us Gold & Ors. Appeal No:- CA/IL/M.95/2010, delivered on 7/12/2011, I had cause to scream thus, in my contributory Judgment:
“I have to add that the resort to the police by parties for recovery of debts outstanding under contractual relationship, has been repeatedly deprecated by the Court. The police have also been condemned and rebuke, several parties, and for using its coercive powers to breach citizens right and/or promote illegalities and oppression. Unfortunately, dispute all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the police remains at the root of many fundamental rights breaches in our Courts.” (Per Mbaba JCA). See also Yusuf Umar us A.A. Salam & Ors (2001) 7 CHR 413.This is another sad situation and the Appellant must be held liable, jointly and severally for the evil.
In the case of Ejefor us Okeke (2000) 7 NWLR (pt.665) 363, held 4, the appellate Court said:-
“where there is an evidence of arrest and detention which were done or instigated by the Respondent in an action for enforcement of fundamental rights application, it is for the Respondent to show that the arrest and detention were Lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was’ lawful.” See also Agbakoba vs SSS (1994) 6 NWLR (pt.351) 475.I therefore resolve the 1st and 2nd issues against the Appellant.
On the 3rd issue, whether the trial Court was wrong in directing that Appellant shall jointly and severally pay monetary sums award in favour of Applicant and whether the sums awarded followed settled principle of law on award of damages. I have already held that the trial court was right to hold the Appellant liable jointly and severally (with the other Respondents) to the claim, what is left to be considered is the 2nd limb of the issue, that is, whether the sums awarded followed settled principles of law on award of damages.
On that, Appellant’s outstanding contention is on the quantum of damages awarded; that the award was high and excessive in respect of the ones for unlawful arrest and detention (amounting to one Million Naira (N500,000.00 each). Counsel, however conceded that appellate court loathes to interfere with award of damages made by trial court, but urged us to interfere, to reduce the award, to what he called nominal one, in the event of our finding that the 1st Respondent was entitled to damages.
On the award of N400, 000.00 for loss of use of 1st Respondents car, kept by the police for 2 years, Appellant said the same lacked basis, since it was pleaded by way of special damages of N5,000.00 per day from 24/5/2006 till released to the 1st Respondent; that there was no evidence to prove the special damage.
The 1st Respondent’s answer to this was that he had pleaded N5,000.00 per day for the car because he was denied the use of same to carry his children to school (as he often did), and so he had to hire a vehicle to do so.
The 1st Respondent did not read any evidence on the alleged hire of vehicle to carry his children to school-how he was charged per day and the receipts for same’ and how long the hiring lasted. The learned trial Judge did not also give any clue as to how he arrived at the N400,000.00, which obviously was not the sum of N 5,000.00 per day, claimed by the Applicant for 2 years. It appears the learned trial Judge considered the claim therein as general damages and simply used his discretion to award the amount’ because 1st Respondents car had been unlawfully mpounded and kept by the police for 2 years. He would be right if the claim for damages for the car were in the nature of general damages. Because the 1st Respondent opted to couch the claim in the nature of special damages and deposed (in the grounds (O) in the statement) that:-
“The Mitsubishi Signa Saloon Car is the vehicle with which the applicant use (sic) to carry his children to school hence he has to hire a vehicle at the cost of N5,000.00 per day to do the same work…the car ought to do for his children.” He had a duty to plead and prove the same, strictly. See the case of Okeme vs CSC. (2001) 5 WRN 101 Ololo vs Agip (2001) 31 WRN 60; Kopek construction Ltd vs Ekisola (2010) All FWLR (Pt.519) 1035.
To that extent, the award of the sum of N400, 000.00 (four hundred thousand naira) as damages for loss of use of the car for the 1st Respondent was not properly founded as it was not proved as required of special damages. The 2nd limb of the issue 3 is therefore resolved in favour of the Appellant and that head of claim fails and the award is hereby set aside.
Of course, the setting aside of the award of N400, 000.00 as damages for loss of use of the 1st Respondent’s car does not affect the competence of the other heads of awards made by the trial judge, that is, the sum of N500, 000.00 for unlawful arrest and another N500, 000.00 for unlawful detention. By law, the appellate court cannot interfere in the award of damages made by the trial court, except:-
I. The lower Court acted under a wrong principle of law, or
II. Acted in disregard of applicable principles of law or
III. Was in misapprehension of facts or
IV. Took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
V. Where injustice will result if the appellate Court does not act or
VI. The amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.
See the case of Oyeniyin vs Ajinkigbe (2010) 1 SCNJ 101 at 116; see also UBN vs Odusute Book Stores Ltd (1995) 9 NWLR (pt 427) 558; Solanke vs Ajibola (1969) 1 NMLR 45; ACB Ltd vs Apugo (2001) 5 NWLR (Pt.707) 653.Appellant has not established any of the above defects to defeat the damages awarded to the 1st Respondent apart from the N400,000.00 already set aside.
I therefore resolve the rest of this issue against the Appellant too.
On the whole this appear fails, apart from the aspect against the award of N400,000.00 for the loss of use of the car, which has been allowed and set aside. The decision of the lower court in suit No KWS/40M/2006 is hereby affirmed, except the award of N400,000.00 (four hundred thousand naira) only for loss of use of the 1st Respondent’s car.
Each Party to bear own cost.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother Mbaba JCA just delivered. His lordship has adequately treated all the live issues that call for determination in this appeal.
I am in complete agreement with his reasoning and conclusions arrived thereat. I too allow the appeal in part and abide by all the consequential orders therein contained.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
Appearances
K.K. Eleja Esq with him is Mashood AliyuFor Appellant
AND
S.A. Bamidele Esq with him is S.A. ShogoFor Respondent
