OLIVER IWUNUNNE v. MORRIS EGBUCHULEM & ORS (2016)

OLIVER IWUNUNNE v. MORRIS EGBUCHULEM & ORS

(2016)LCN/8550(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/OW/80/2012

RATIO

APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES MADE BY THE TRIAL COURT
In the case of GTB Plc vs Fadco Industries Nig ltd & Anor (2013) LPELR – 21411 CA, this Court relying on the Supreme Court case of Ifeanyi Chikwu Osondu Co.ltd vs Akhigbe (1999) 11 NWLR (pt. 625) 1, said:
An Appellate Court does not make it its business to interfere with general damages awarded by the trial Court, unless it is established that the trial judge acted, in the award of such damages, upon some wrong principles or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. Per Uwaifo JSC
The above principle is applicable in every and any situation of exercise of discretion by a Lower Court. Appellate Court can only interfere, where it is established that the Lower Court did not exercise its discretion properly, taking into consideration all the judicial procedures and the requirements of justice, thereof. GTB Plc vs Fadco Industries Nig ltd (Supra); S&D Construction ltd vs Ayoku (2011) 13 NWLR (pt. 1266) 487; NNPC vs WIFCO Nig. ltd (2011) 10 NWLR (pt. 1255) 209; Aluwa vs SPDCN (2011) 18 NWLR (pt. 1279) 797. PER ITA GEORGE MBABA, J.C.A.
BREACH OF FUNDAMENTAL RIGHTS: DOES DAMAGES ACCRUE AUTOMATICALLY WHERE THERE IS A BREACH OF FUNDAMENTAL HUMAN RIGHTS
On the allegation that the damages was not proved by credible evidence, and that the person who, in fact, caused the damages must be established, Appellants Counsel appeared to have forgotten that general damages need not be, specifically, pleaded or proved, as the same tends to flow from the act/conduct of the defendant complained against. And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of Applicants fundamental right(s). See Section 35 (6) of the 1999 Constitution and the case of Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 CA, where this Court held:
The law is trite that damages in compensation, legally and naturally follow every act of violation of citizens fundamental right. See Section 35 (6) of the 1999 Constitution, as amended. See also Agu vs Okpoko (2009) LPELR 8286 CA.
In the case of Gusau & Ors vs Umezuruike (2012) ALL FWLR (pt. 655) 291; (2012) LPELR – 8000 (CA), it was held
detention, no matter how short, can lie a breach of fundamental right. But that can only be so, if the detention is adjudged wrongful or unlawful in the first place; that is, if there is no legal foundation to the base the arrest and/or detention of the applicant, See Okonkwo vs Ogbogu (1996) 5 NWLR (pt. 499) 420; Isenalumhe vs Joyce Amadin (2001) CHR 458; Nemi vs A.G Lagos State (1996) 6 NWLR (pt. 452).
And in the case of Ejiofor vs Okeke (2000) 7 NWLR (pt. 665), it was held:
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 . . . PER ITA GEORGE MBABA, J.C.A.
COURT: ATTITUDE OF COURT TOWARDS A PARTY WHO USES ANY LAW ENFORCEMENT AGENCY TO VIOLATE THE FUNDAMENTAL RIGHTS OF A CITIZEN
We have stated, several times, that a party who employs the Police or any law enforcement agency, to do unlawful act and/or to violate the fundamental rights of a citizen, should be ready to face the consequences, whether alone or with the misguided agency. See again the recent decision of this Court in the case of Bernard Anogwie s Ebere Odom & Ors: (2016) LPELR ? 40214 (CA), delivered on 24/3/16; Ogbonna vs Obgbonna (2014) 23 WRN 48; (2014) LPELR ? 22308 (CA). PER ITA GEORGE MBABA, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

OLIVER IWUNUNNE Appellant(s)

AND

1. MORRIS EGBUCHULEM
2. INSPECTOR DANIEL OSUNBOR
(OF ANTI POLITICAL THUGGREY UNIT NIGERIAPOLICE STATE COMMAND HEADQUARTERS, OWERRI)
3. MRS. NGOZI AGBARA (WOMEN POLICE I.P.O)
4. COMMISSIONER OF POLICE
(IMO STATE POLICE COMMAND) Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Imo State High Court in Suit NO. HME/83/2008, delivered by HON. JUSTICE T.E. CHUKWUEMEKA CHIKEKA on 10th December, 2008, wherein the trial Court granted the reliefs sought by the Applicant (now 1st Respondent).

The matter at the trial Court was an application for enforcement of fundamental right of the Applicant, couched as follows:
Redress for the infringement of the fundamental rights of the Applicant in terms of the relief set out in paragraph 2 of the statement accompanying the application for leave and served along with this application, thus:
(a) A declaration that the arrest, detention and torture of the Applicant at the Nigeria Police, Imo State Command Headquarters at Owerri from the 18th day of June to the 20th day of June, 2008, a period of three days, by the 2nd and 3rd Respondents at the behest and instigation of the 1st Respondent constitutes an infringement of the Applicant?s fundamental right against torture, inhuman and degrading treatment and his right to personal liberty protected by Sections

34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999.
(b) A declaration that the use of the Police Coercive Powers and Criminal process by the 2nd and 3rd Respondents to intimidate the Applicant to prevent him from associating with and standing surety for Anselem Iwuoha and his wife, detained at Nigeria Police, Imo State Police command, Owerri, is a gross violation of the Police Act, Cap 359, Laws of the Federation and fundamental right of the Applicant as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria, 1999.
(c) N10,000,000.00 (Ten Million Naira) being damages for the violation of the Applicant?s fundamental rights, aforesaid.?

Applicant’s grounds for seeking the application and the affidavit of facts verifying the same were disclosed, as per pages 11 to 16 of the Records of Appeal. And the Respondent (Appellant herein) filed a counter affidavit (as per pages 19-23 of the Records). The 2nd to 4th Respondents (Police) filed their counter affidavit too (as per pages 24 ? 25 of the Records).

After hearing the case and considering the addresses of respective Counsel in

the matter, the trial Court held for the Applicant as follows;
As earlier stated, the 1st Respondent did not deny the statement the Applicant said he made in paragraph 27 of the Grounds. I have no other alternative than to believe the Applicant that the 1st Respondent made the said statement which induced the 2nd Respondent to give him a dirty slap on the cheek and later ordered for his detention. It is true Section 4 of the Police Act allows the Police Officers to carry out the duties contained therein, but such duties should be carried out with utmost caution and respect, not to offend the provisions of the Constitution, which is the grand(sic) norm of the Country, especially in issues concerning the Fundamental Rights of its citizens. In the circumstances, reliefs (a), (b) which should be read without the 3rd Respondent and (d) succeeds (sic). I find as follows:
(1) The 1st Respondent secured the services of the 2nd to 4th Respondents
(2) The 1st Respondent uttered the statement described (sic) to him by the Applicant in paragraph 27 of his grounds
(3) The 2nd Respondent gave the Applicant a dirty slap on his cheek and thereafter

detained him for (3) three days for no just cause.
(4) The Applicant has suffered emotional and mental trauma as a result of the infringement.
(5) The 3rd and 4th Respondents did not do anything to infringe on the Fundamental Rights of the Applicant.
(6) The 3rd Respondent was only obeying orders from her boss ? the 2nd Respondent when she detained the Applicant.
In the circumstances, I make the following orders;
(i) The 1st and 2nd Respondents pay the Applicant damages assessed at the sum of three million naira for illegal unconstitutional arrest, detention, intimidation and torture, that is to say, for illegal and unconstitutional violation of the Applicant?s fundamental Rights.
(ii) Five Thousand naira (N5,000.00) cost.

That is the judgment which Appellant appealed against as per the Notice of Appeal, filed on 22/12/2008, disclosing Seven (7) grounds of appeal. (See pages 63 to 70 of the Records of Appeal). Appellant filed his brief of argument on 28/5/13, which was deemed duly filed on 30/4/15. He also filed a Reply Brief on 24/4/15. In the Brief, Appellant distilled three (3) Issues for the

determination of the Appeal, namely:
?(a) Whether, having regards to the Mandatory Provisions of Order 2 Rule 1 (2) of the Fundamental Rights Enforcement Procedure Rules, 1979, the application was competent before the Court. (Grounds 1 and 2)
(b) Whether a person on whose report the Police arrests another for established crime is liable for the breach of the arrestee?s right. (Grounds 3, 6 and 7)
(c) Whether the damages awarded to the Applicant was not ludicrously and excessively high to warrant the Appellate Court to interfere with it?. (Grounds 5).

The 1st Respondent filed his brief of argument on 13/12/2013 and distilled three issues too for the determination of the appeal, based on Appellants Issues, as follows:
(1) ?What is the true intention of order 2 Rule 1 (2) of the Fundamental rights Enforcement procedure Rules 1979 vis?a-vis applications filed within 14 days but entered for hearing outside 14 days after leave has been granted?
(2) Whether the detention of the Applicant at the Court below on the instigation of the Appellant was not wrongful having admitted that he made no report against

him? Grounds 3, 6 and 7.
(3) Whether N3,000,000.00 damages awarded the Applicant at the Court below as damages was excessive.?

When the appeal came up for hearing on 12/4/16, Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.

Arguing the Appeal, L.I. Ibezim Esq., who settled Appellant?s brief, on Issue one, referred us to Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which says ?The Motion or Summons must be entered for hearing within fourteen days after such leave has been granted? and submitted that the provision is mandatory, meaning that, fixing the Motion on Notice, filed on 28/7/2008, on 18/9/2008 (59 days after leave was granted) for hearing, was improper; that the motion should have been fixed for hearing on 4//08. He relied on the case of Abia State University Uturu vs. Chima Anyaibe (Mrs) (1006) 1 NWLR (Pt.439) 646 ? 661 to say that it is only with strict compliance with the Provisions of Order 2 Rule 1 (2) that jurisdiction to continue with the case is conferred on the Court. Thus, he submitted that failure to comply with the provision to

fix the case for hearing within 14 days of grant of the leave to file the motion on Notice, was a breach of the Order 2 Rule1 (2) of the fundamental Rights (Enforcement Procedure) Rules, 1979 and that robbed the trial Court of the jurisdiction to continue with the suit. He relied on Madukolu vs Nkemdilim (1962) 1 ALL NLR 587; Araka vs. Ejeagwu (2000) 12 SC (pt.1) 99; Galadima vs Tambai (2000)6 SC (Pt.1) 196.

On Issue 2, whether a person on whose report the Police arrests another for established crime is liable for the breach of the fundamental rights of the person arrested, Counsel answered in the negative. He argued that the judgment of the trial Court is tainted with bias, unnecessary rejection, admission and inexplicable inferences of the paragraphs of the affidavit evidence of both parties that led the Court to deliver a very confusing judgment. He said that Appellant wrote a petition to Police against some people including Applicant, (Respondent) saying that he (Applicant) conspired with another (Anselam Iwuaho) to threaten and disturb his (Appellant?s) workers, that the Police arrested Applicant pursuant to the petition and caused him

(Applicant) to make a statement over the accusation and was thereafter released on bail. He said that his case against Applicant was threat to life and conduct likely to cause a breach of the peace. Appellant relied on paragraphs 23 ? 27 and 30 ? 31 of his counter affidavit. He also relied on paragraph 8 of Counter affidavit of 2nd to 4th Respondents and Exhibit A attached thereto, (See page 25 of the Records)

?Counsel submitted that, the trial Court, unfortunately, held that the said Exhibit A, being an extract from the Crime Diary, cannot qualify as a petition upon which the Police can act and therefore held that the Appellant never wrote a petition to the 2nd to 4th Respondents and therefore discountenanced Exhibit A; he argued that by rejecting Exhibit A, the Court did not make any findings on paragraph 23 ? 27 and 30 ? 31 of the Counter affidavit; that the Court came to a wrong conclusion of the case, by so doing, by reason of failure to consider the said paragraphs of the Counter affidavit. He referred us to page 65 of the Records, where he said the bias of the trial Court was exposed. He argued that paragraph 4 of the Counter

affidavit did not admit Applicant?s paragraphs 1, 2 and 3 of the grounds, as the trial Court held; he said that Appellant never admitted, in any of the paragraphs of his counter affidavit, the inference by the trial Court, when it said that applicant?s affidavit showed that the complaint of 1st Respondent (Appellant) was only against Anselem Iwuoha and his wife, that apart from that admission, non of the Respondent?s deposed to the facts of where and when the Applicant was arrested. He referred us to page 68 of the Records, where Counsel said the trial Court confused itself.

Counsel also argued that the decision to detain Applicant, if it happened, was that of the Police, not by the Appellant; that the Court cannot hold Appellant liable for independent act/decision of the Police, if the complaint made by the Appellant against the Applicant (Respondent) to the Police disclosed a prima facie case against the Applicant. He relied on Bassey vs Afia (2010) ALL FWLR (Pt. 531) 1481 (ratio 5); Cabajor vs Ogunburegui (1961) ALL NLR 853; Mandilas & Karaberies Ltd vs Apena (1969) NWLR 199

On Issue 3, whether the damages, awarded was not

ludicrously and excessively high, Counsel answered in the affirmative. Counsel, however, admitted that damages are awarded at the discretion of the trial Court. But he said that in the exercise of that discretion, the Court has to be guided properly and should not act arbitrarily. He gave the following principles as guide to the exercise of discretion by the trial Court on damages.
i. Actual Pecuniary loss
ii. Anticipated Peminary (sic) loss
iii. Social disadvantage which results
iv. Natural injury to the Plaintiff?s feelings
v. Social standing of the Plaintiff and
vi. Rate of inflation which has adversely affected the value of the nation?s currency.

He relied on the case of UBA PLC VS DAVICS (2011) ALL FWLR (Pt. 576) ratio 4 at 551 ? 552; Cameroon Airlines VS Otutuizu (2011) ALL FWLR (PT. 570) ratio 10 at 1267

Counsel said that the trial Court, in the instant case, was not guided by any of the above principles in awarding the damages to the Applicant, which Appellant described as ridiculously high; that the reason given to support the award was that Applicant was given a dirty slap and detained, which

made him to suffer emotional and mental trauma; He argued that the above reasons are ridiculous as they do not affect the social standing of Applicant, a complete village man and a contractor who did not disclose the name of his business! Counsel also relied on the case of Ozigbu Engr. Co. Ltd vs Iwuamadi (2011) ALL FWLR (Pt.553) ratio 1 at 1977 as to when Appellate Court can interfere with award made by the trial Court. He also relied on Ogbiri vs N.A.O.C. Ltd (2011) ALL FWLR (Pt. 577) ratio 9 at 814, where he said it was held:
?Where actual damages are proved without credible evidence of who caused the damages, the Defendant is entitled to order of dismissal of the suit in his favour. Where there is no evidence to support the claim of damages, the claim ought to be dismissed. Damages are not awarded on sentimental grounds. The award of damages is discretionary and it has to be exercised judiciously and judiciary. They are only awarded against those who actually caused them

Counsel urged us to resolve the Issues for the Appellant by absolving him from the damages awarded against him, and reduce the ridiculously high damages awarded by

the trial Court. Finally, he urged us to allow the appeal.

1st Respondent?s Counsel, Chief O.C. Odoemana, on the application of Order 2 Rule 1 (2) of the Fundamental (Rights Enforcement) Procedure Rules, 1979, submitted that phrase; ?enter for hearing? calls for the interpretation of the Court. He said that from the Records of Appeal, leave was granted to the 1st Respondent to enforce his fundamental rights on 21/7/2008 and on 28/7/2008 Applicant filed his motion on notice for the enforcement of his fundamental rights, and within the 14 days stipulated by the law. He relied on the case of C.O.P vs. Muritala Ajadi & Anor (1980)4 OYSHC 845 at 852 to say that, the provisions of Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules are satisfied, once the papers are filed in the Court Registry, and such motion should be deemed to have been entered for hearing. He further argued that the responsibility of fixing the case for actual hearing is not that of the party who applied, but that of the trial Court. He also relied on Ogunremi & Anor. Vs Dada (1962)1 ALL NLR 663, on when a matter is said to have entered the

Court, as well as on the case of A.G. of Federation vs G.O.K. Ajayi (2000) 2 W.R.N. 133 at 152, where this Court held concerning Order 2 Rule 1 (2) of FREPR:
?The practical meaning, in my view, is that the notice or the process shall be filed in the Court within the time prescribed by the rule. Once that is done, the Applicant, in my view, has complied with the provisions of the rule. The fixing of the application for hearing is the exclusive function of the Officials of the Court and an Applicant has no control over that.? See also Ezeokafor vs Ezeilo (1999)9 NWLR (Pt. 619) 513.

Counsel also relied on the case of CCB Nig Plc vs. A.G. Anambra State & Anor (1992)10 SCNJ 137 at 168 to the effect that:
it will be contrary to all principles to allow litigants to suffer for the mistake of the Court Registry. The Registry as well as the parties are in duty, bound to observe the rules of Court. Litigants or Counsel on their behalf file applications. The Registry is to give a hearing date.?

He urged us to resolve the issue against the Appellant.

?On Issue 2, Counsel referred us to paragraphs 1 to 3 of the

grounds upon which the Applicant brought his application, which 1st Respondent said was admitted by Appellant in his counter-affidavit. Counsel said Exhibit A (Police extract) which Appellant?s Counsel said was the petition of the Appellant to the Police, alleging threat of life by the Applicant (Respondent) and others, was, in fact, not the petition alleged by the Appellant, and that the same was not even signed; that by law, an unsigned document is worthless,. He relied on Omega Bank Nig Plc vs. O.B.C. Ltd (2006) 4 W.R.N.1

Counsel submitted again that Appellant had admitted paragraphs 1 ? 3 of the grounds of Applicant?s application as per paragraph 4 of the Counter affidavit; that it was strange for Appellant?s Counsel to argue that that admission related to introductory part of the case; he said that admission is admission, whatever the stage; that Counsel?s argument cannot replace the evidence. Thus, Counsel said that the trial Court was right, when it held that the Appellant had admitted that his original petition was against only Anselem Iwuoha and his wife, but he (Appellant) caused the Police to arrest Applicant at

the Police station (when he went to taken on bail the said Anselem Iwuoha and his wife), assault and detain him for no just cause; that at the station Appellant pointed at the 1st Respondent (Applicant) to be arrested being (offended he (Applicant) came to bail Anselem Iwuoha and his wife. He relied on paragraph 27 and said that the Applicant?s paragraphs 16 to 27 had not been denied by the Appellant. He referred us to paragraph 12 to 13 of the Records of Appeal and pages 1A and 5A of the Additional Records of Appeal.

He relied on the case of Dikwa vs Modu (1993) 3 NWLR (pt. 280) 170 and Sanusi vs Makinde (1994) 5 NWLR (pt. 343) 214 to say that, it is well settled in law, that general traverse or denial is not enough. He submitted that 1st Respondent instigated the Police to do his bidding as shown in paragraph 22 of the Applicant?s grounds in support of the application; that the Court was right, when it so held. He referred us to the findings of the trial Court, on pages 64 ? 65 of the Records, when it said:
. . . Exhibit A, as stated earlier, is an extract from the crime diary and not the petition of the 1st Respondent. The

petition of the 1st Respondent, if it exists, is in the hands of the 2nd to 4th Respondents and they should have no difficulty producing same. The 1st Respondent, on the other hand, should have at least annexed a duplicate copy of what he submitted to the 2nd to 4th Respondents. It is my opinion, in the circumstances, and I so hold, that the 1st Respondent never wrote a petition to the 2nd to 4th Respondents.?

Counsel argued that he who alleges the existence of a fact or facts has the burden to prove it; that it was Appellant who alleged he wrote a petition indicting the 1st Respondent, threatening to wipe out his family, but his allegation was never proved. Counsel relied on Section 167 (d) of the Evidence Act, 2011, for failure to produce relevant evidence and urged us to presume same against Appellant.

Interestingly, Counsel said, the Appellant had not appealed against the above findings of the trial Court. He concluded that, Appellant, without any report made to the 2nd to 4th Respondents, went on to instigate them to arrest and detain the Applicant for three days, from 18th to 20th June, 2008, when he went to the Police station to arrange

to take Anselem Iwuoha and wife on bail.

On issue 3, whether the ?3,000,000.00 (Three million naira) awarded the Appellant was excessive, Counsel answered in the negative. He submitted that, by law general damages is entirely at the discretion of the trial Court and the appellate Court cannot interfere in the exercise of the discretion, unless:
1. The judge proceeded upon a wrong principle of law, or
2. The reward was clearly an erroneous estimate, since the amount was manifestly too large or too small. Ziks Press ltd vs Ikoku 13 WACA 188.

Counsel defended the decision of the trial Court on the reward of ?3,000,000.00 damages for the Applicant, and referred us to the reasons proffered by the trial Court in the judgement. Counsel argued that the attempt by the Appellant to present the Applicant (1st Respondent) as ?a complete village man?, to demean him (which fact was not part of the evidence) would not also justify reduction of the amount awarded to him, as that cannot constitute a fact for the appellate Court to tamper wth the discretion of the trial Court. He relied on Olowoake vs Salawu (2000)9 WRN 93. He also relied on

Fashawe vs AG. Federation (2007) 8 WRN 125 at 189 and Iroegbu vs C. O. P. Anambra State (2005) 4 A HRLR 697; Onagoruwa vs IGP (1993) 5 NWLR (pt. 193) 593 at 650 ? 651.
He urged us to resolve the issues against the Appellant and dismiss the appeal.

RESOLUTION OF ISSUES
I shall consider this appeal on the three issues distilled by the Appellant, which were, substantially, adopted by the Respondents, except for semantics.

On Issue 1, whether the application was competent, having regards to Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979, Appellant had complained that the motion on Notice was entered for hearing by the trial Court about 59 days after the grant of the leave for Applicant to apply to enforce his fundamental rights; that by the rules of Court, the application should have been entered within 14 days.

Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 states:
The Motion or Summons must be entered for hearing within fourteen days after such leave has been granted.
The above provision, under the 1979 Rules, had enjoyed several

interpretations of the superior Courts, to the effect that, Applicant in a fundamental right application, had a duty to pursue the case with dispatch and so, the motion or summons must be filed or entered for hearing within 14 days, after the grant of the motion exparte, granting leave to the applicant to apply to enforce his fundamental rights. The Courts have interpreted the phrase entered for hearing to mean or imply, filing the motion on Notice or Summons in Court. Of course, that is when the case is formally entered in Court (after the grant of leave) for the hearing or determination of the complaint by the trial Court. See the case of A. G. Federation v G. O. K. Ajayi (2000) 2 WRN 133 at 152, where this Court, per Aderemi JCA, held:
The practical meaning, in my view, is that the Notice or Process shall be filed in the Court within the time prescribed by the rule. Once that is done, the applicant, in my view, has complied with the provisions of the rule. The fixing of the application for hearing is the exclusive function of the officials of the Court and an applicant has no control over that.
See also the cases of

Cunsin Nigeria Ltd & Anor vs IGP & Ors (2008) LPELR 4008 CA, and Ezeadukwa vs Maduka & Anor (1997) LPELR ? 8062 (CA), where this Court, while emphasizing the mandatoriness to file the motion on Notice or Summons within 14 days, said;
?Failure, therefore, to comply with the clear words of Rule 1(2), i.e. entering the motion or summons for hearing, will render the leave already obtained worthless. In fact any procedure wherein the Court reacts to a motion or summons which is entered for hearing outside the 14 days period is a serious breach of the sub-rule, sufficient to render same a nullity. The same view was adopted . . . in Ogwuche & Ors vs Mba & Ors (1994) 4 NWLR (pt. 336) 75. It is, however, necessary to state that an applicant, whose 14 days period has run out, has not altogether lost the right to enforce the alleged violation of his fundamental right. The expiration of the 14 days period, in my view simply means that the ex-parte leave, earlier granted to the applicant, has expired by exffluxion of time.? (Per Achike JCA).
It is, completely, outside the scope of logic and sound legal reasoning, to say,

suggest or imply that the 14 days, stipulated in Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, for entering of Motion or Summons for hearing, relates to the fixing of the case by the trial judge for commencement of actual hearing of the suit. Once the Motion or Summons has been filed within the stipulated time, that is, within 14 days (after the grant of leave), the Applicant is deemed to have complied with the requirement of the law for the application to be heard by the Court, and the duty of fixing the case for hearing or commencement of hearing lies with the Court, not with the Applicant.
In the case of Enukeme vs Mazi (2014) LPELR ? 23540 (CA) Appellant, just as in this appeal, had complained that the trial Court had failed to comply with Order 2 Rule, 1(2) of the Fundamental Rights (Enforcement procedure) Rules, 1979, because it commenced hearing of the motion on Notice, after 61 days of the grant of the leave to bring the application; that whatever the trial Court did was a nullity, by so doing. It was held:
In my opinion, it would be absurd to reject or nullify a judgement/proceedings, simply

because it was not heard and determined within the time frame stipulated (7 days or 14 days) by law for the case to be fixed for hearing (granted Appellant were correct in his interpretation of that provision), since the essence of the shorter time frame for hearing the suit was to expedite action and give judgement speedily. That the case is finally heard or determined, at all, after some delay (which might even be caused by the adverse party) though beyond the anticipatory period, should, in my opinion be a relief and thing of joy, instead of a disqualification and offence. I therefore, hold that the learned trial Court was properly guided, when he held the process filed by the Respondent to be competent. . .the proceedings. . .could not be defeated, simply because the matter was fixed for hearing, 61 days after it was filed instead of 7days. . .?

?Of course, the above case was fought under the 2009 Fundamental Right Enforcement Procedure Rules, not 1979 Rules; the 2009 Rules has no provision for exparte application for leave to bring an action, and rather requires the filing of motion on Notice or summons, straight away, and for the same to be

fixed for hearing 7 days after the filing of the suit. (See Order ix Rule 1 of the Fundament Rights (Enforcement Procedure) Rules, 2009).

I therefore resolve this issue against the Apellants, holding that the suit was competent and that the trial Court breached no rule, by fixing the suit for hearing about 51 days, after the grant of the leave to bring the application, the Applicant having filed the motion within 14 days, after the grant of the leave to bring the application.

Issue 2 was whether a person on whose report the Police arrest another for establishment crime is liable for breach of arrestee?s right?

The law is well defined on this, that every citizen has a right to make or lodge honest complaint with the Police or any law enforcement agency against any wrong doing or crime, committed by the accused/suspect and the person lodging the complaint is not liable for the wrong committed by the Police (law enforcement agency) in the course of handling the complaint, while exercising their (Police) independent decision/judgement in the handling of the complaint. See OSIL. vs Bologun (2012) LPELR ? 9218 CA; (2013) All FWLR (pt 677)

633; (2012) 38 WRW 143 which held:
any complaints 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 Fajenirokun vs Commercial Bank (Credia Lynbnnais) 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 citizen cannot be held culpable for doing their duties, unless it is shown that it is done malafide?
In the case of DURU VS Nwangwu (2006) 5 SCNJ 394 at 402, the Supreme Court held:
?It is settled law, that where an individual has lodged the facts of his complaint to the Police, as in this case, by way of petition, and the Police have there-upon, on their own proceeded to carry out arrest and detention, then the act of imprisonment is that of the Police.? See also PGSS Ikachi vs Igbudu (2005) 12 NWLR (2005) 12 NWLR

(pt. 940) 543 at 574.
Of course, there is a proviso to the above principle. Where the complaint was lodged, falsely, against the victim or the complainant procurred the Police to harass and attack the victim, for ulterior motives, or over a purely civil matter, with the intent of using the Police or law enforcement agency to settle private scores, the complainant cannot wash off his hands from the evil visited on the victim of the malicious complaints. The authorities on this are replete. See the case of OSIL. vs Balogun (supra), Ogbonna vs Ogbonna (2014) 23 WRN 48; (2014) LPELR- 22308 (CA); Agbakoba vs SSS (1994) 6 NWLR (pt 351) 475, Udeagha vs Nwogwugwu (2013) LPELR- 21819 CA.

Appellant in this case claimed to have written a petition to the Police, alleging threat to life and other criminal imputation against the 1st Respondent and a couple (Anselem Iwuoha?s and his wife) on 16/6/08. He did not produce the petition at the trial; neither did the Police, though they heavily relied on it. They rather produce a Police Extract (Exhibit A), which mentioned the name of Anselem Iwuoha and his wife, Juliana Iwuoha, as those who threatened to kill the

Appellant, and the complaint touched on land dispute.

The 1st Respondent had averred that he went to the Police station on the mandate of his village, to negotiate for the release of the couple on bail, but on seeing him (1st Respondent) at the Police station and hearing of his mission. Appellant pointed at him (1st Respondent) as one of the suspects to the 2nd Respondent (Police Inspector), and threatened him (1st Respondent), swearing that he (1st Respondent) will regret his decision to come to Owerri to bail the couple. The 2nd Respondent then ordered the 1st Respondent to see the IPO (3rd Respondent) to make statement to the Police. When the 1st Respondent asked to find out why he was asked to make statement and what offence he had committed to warrant making a statement to the Police, the 2nd Respondent gave him a ?dirty? slap, and Appellant told 1st Respondent. You are interfering in this matter.

The 3rd Respondent then took Statement from him (1st Respondent) and detained him on the instruction of the 2nd Respondent. He was made to undress to his pants and detained in dirty, smelling, filthy and ill lit cell for 3

days, from 18th to 20th June 2008. See paragraphs 22 to 28 of the grounds in support of the Statement of the Applicant on page 14 of the Records.

The above facts were substantially admitted by the Appellant in paragraphs 22 to 28, 30, 31 and 33 of his counter affidavit (pages 3A to 4A of the Supplementary Records of Appeal), where he averred:
(22) That Anselem Iwuoha and his wife started disturbing my workers, threatening my life among other acts of misconduct.
(23) That the applicant and Anselem Iwuoha conspired to threaten and disturd my workers on the land.
(24) That I indicted the applicant in my petition/ statement to the Police at Owerri, because he threatened to wipe out my family.
(25) That the Police arrested the applicant and asked him to make statement in response to his conduct against me as contained (sic) my own petition/statement.
(26) That the applicant duly made Statement in response to my own and was thereafter released on bail.
(27) That my case against the applicant is for threat to life and conduct likely to cause a breach of the peace.
(28) That the Police has not concluded their investigation in

the matter till date.
(30) That the applicant?s arrest and interrogation were lawful because they were based on complaint duly made by me.
(31) That when the applicant threatened to wipe out my family, I had no choice than draw the attention of the Police to the threat?
(33) That I am deeply surprised by the deliberate lies told against me and the other respondents by the applicants. I never threatened or had any hot exchange of words with him at the State Police Headquarters Owerri.?

Appellant, as earlier stated, did not produce the statement he made to the Police against the Applicant and Anselem Iwuoha and wife, to support the allegations, that he (Applicant) and Anselem Iwuoha ?Conspired to threaten and disturb my workers on the land?; or that ?he threatened to wipe out my family?; or that ?my case against the applicant is for threat to life and conduct likely to cause breach of peace?.

But the above allegations, on paragraphs (23),(24) and (27) of the counter affidavit of the Appellant, appear to go contrary to the tenor or trend of his avermets in paragraphs(6), (7), (17), (18)

and (22) of the counter affidavit, which said:
(6) That it is however true that I reported a case at Amaraku Police Station against Iwuoha.
(7) That my report against Iwuoha was based on threat to life, assault, conduct likely to cause breach of the peace, among others.
(17) That I did not also know whether our kinsmen or any other person mandated the applicant to take Anselem Iwuoha on bail.
(18) That while my report against Anselem Iwuoha was being investigated by the Police at Amaraku, moves were made to settle the matter, peacefully.
(22) That when I commenced work again on my land, Anselem Iwuoha and his wife started disturbing my workers, threatening my life, among other acts of misconduct.

?There is no where in the above paragraphs, that the Appellant said he lodged a complaint or made statement against the Applicant, or that he mentioned the name of the Applicant in the alleged petition to the Police. It is unlikely the Village would have sent the Applicant to go to the Police station to negotiate for the bail of Anselem Iwuoha and his wife, if Applicant was one of those wanted by the Police, on the complaint of the

Appellant! That shows that Appelllant only picked offence with the Applicant (1st Respondent), when the latter came to take the couple on bail, and he told Applicant that he will regret his decision to come to Owerri, to bail Anselem Iwuoha and his wife? (page 14 of the Records). That was because, Appellant saw the Applicant, as interfering with the matter he reported to the Police against Anselem Iwuoha & wife. The Police too (2nd Respondent) did not take kindly to the alleged interferance and so the inspector (2nd Respondent) had to resort to physical assault on the Applicant by giving him a dirty slap, before locking him up in the cell for 3 days, to appease himself and the Appellant!

The 2nd – 4th Respondents counter-affidavit, deposed by the 2nd Respondent, did not also deny the substance of Applicants averments and did not produce the alleged petition by the Appellant to the Police. He did not deny giving Applicant a ?dirty? slap and putting him in the cell for 3 days. He rather deposed, by way of general denial, in paragraph 10 to 13 of the counter-affidavit, thus:
(10) That I deny paragraphs

18, 19, 20, 21, 22 of the grounds as false, 2nd Respondent as the leader of the investigation team has the right to invite Applicant into his office, it is normal, and there was no threat on the Applicant by any one at the Police station.
(11) That I deny paragraph 23, 24, 25, 26 as false. 2nd -4th Respondent have no knowledge of these averments as they are false.
(12) That I deny paragraph 27, 28, 29, 30 as false. The averments in these paragraphs are irrelevant (sic) issues. Applicant was never tortured or punished in any way he was released accordingly after making his statement.
(13) That I deny paragraph 31 ,32, 33, 34 of Applicant?s ground relied upon as false (sic) specific criminal offence known to our law. His arrest were (sic) not unlawful and it is not true that he was threaten by 2nd -3rd Respondents.

Of course, the above breached the rule of denial of averments, as specific facts in affidavit must be, specifically, and effectively denied or controverted. See Mana vs PDP & Ors (2011) LPELR ? 19754 (CA); Odutola Vs NITEL (2006) ALL FWLR (pt.335) 73 at 87.

The trial Court had found as follows, on pages 65-66 of the

Records:
?the 1st Respondent admitted in paragraph 4 of his affidavit in opposition, that the content of paragraph 1, 2 and 3 of the grounds contained in Exhibit EC2 are true, where the applicant said that the complaint of the 1st Respondent was only against Anselem Iwuoha and his wife. Apart from the above admission by the 1st Respondent, none of the Respondents deposed to the fact of where and when the applicant was arrested. The length of time of the applicants arrest was also evaded. The bail bond which would have confirmed or otherwise the claim of the arrest, detention and number of days applicant was detained was not made available to the Court. The Court, therefore, believe the Applicant, that he was arrested and detained for three (3) days, to wit, 18th to 20th June, 2008, and that he was arrested at the Police Headquarters, Owerri, when he came for the bail of Anselem Iwuoha and his wife.?

The above findings accorded with the evidence, Appellant having admitted the arrest of the Applicant, based on his complaints, which tended to robe in the Applicant, maliciously, simply because he came to the Police station to

take Anselem Iwuoha and his wife on bail. Both, the Appellant and the 2nd Respondent, were mischievous and callous, and the 2nd Respondent was abusing his office, as Police officer, when he subjected the Applicant to such brutality and assault giving him a dirty slap on the cheek, caused him to strip down to pants and detained him in a dirty, smelling, filthy and ill lit cell for 3 days!

In the case of Anogwie & Ors. Vs Odom & Ors (2016) LPELR 40214 CA, it was held that: a party that employs the Police or any enforcement agency to violate the fundamental rights of a citizen, should be ready to face the consequences, either alone or with the misguided agency? Ogbonna Vs Ogbonna (2014) 23 WRN 48.

That leads me to the 3rd Issue, which complained against the amount awarded to the Applicant as damages, that it was ludicrous and excessive. Arguing the Issue, Appellants Counsel said ?The Appellant considers the amount of 3,000,000.00 (Three Million Naira) awarded to the Applicant as ridiculously high, hence the Court of Appeal is urged to interfere?

Counsel, however, admitted

that damages are awarded at the discretion of the trial Court and that the Appellate Court cannot interfere with the discretion of the trial Court, unless it is established that the trial Court did not exercise that discretion judiciously and judicially, He also argued that there was no credible evidence as to who caused the damages; that damages are not awarded on sentimental grounds and must be awarded against those who actually caused them.

It is clear, that Appellant would like us to consider his feelings or personal sense of evaluation of what the damages should be. That appears to be the import of his above submission that Appellant considers the amount of ?3,000,000.00 . . . awarded to the Applicant as ridiculously high . . .

What constitutes commensurate general damages awardable by a Court in a case, does not require any opinion, consideration or sense of assessment/evaluation of the defendant and he is not competent to call the award names, that it is ludicrous or ridiculous. If he says the award is excessive, he has a duty to prove that allegation, He is not allowed to subject the exercise of discretion by the

trial Court to mockery or ridicule.

The law is trite, that award of general damages is based on the discretion of the trial Court, and an appellate Court is not permitted to substitute its feelings or discretion with that of the trial Court, as to the amount awardable, except it is proved that the trial Court did not observe the acceptable rules/principles for making the award, namely:
a) The trial Court acted on a wrong principle of law, and/or
b) The trial Court made an estimate of damages which is entirely erroneous that no reasonable tribunal would have made. See the case of Ogah & Anor vs Gidado & Ors (2013) LPELR ? 20298 CA; Williams vs Daily Times (1990) 1 NWLR (pt. 124) 1; Ifeanyi Chukwu Osondu Co. ltd vs Akhigbe (1999) 11 NWLR (pt. 625) 1; OSIL vs Balogun (2012) ALL FWLR (pt. 643) 1880 at 1906 ? 1909.

Appellant did not point at any evidence on the records of appeal that faulted the exercise of discretion by the trial Court in awarding three million Naira (?3,000,000.00) to the Applicant, against the Appellant and the 2nd Respondent in this appeal, for the unlawful violation of the fundamental rights of the

Applicant at the Police station, when he went to take fellow citizens on bail, earlier arrested and detained by the police at the instance of the same Appellant. Appellant, merely, depended on his whims and caprices to adjudge the award ludicrous and excessive. And he claimed the Applicant was a mere village man ? a fact not borne out of the evidence. He argued for the reduction of the damages awarded!

In the case of GTB Plc vs Fadco Industries Nig ltd & Anor (2013) LPELR ? 21411 CA, this Court relying on the Supreme Court case of Ifeanyi Chikwu Osondu Co.ltd vs Akhigbe (1999) 11 NWLR (pt. 625) 1, said:
An Appellate Court does not make it its business to interfere with general damages awarded by the trial Court, unless it is established that the trial judge acted, in the award of such damages, upon some wrong principles or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. Per Uwaifo JSC
The above principle is applicable in every and any situation of exercise of discretion by a Lower Court. Appellate Court can only interfere, where it is established that

the Lower Court did not exercise its discretion properly, taking into consideration all the judicial procedures and the requirements of justice, thereof. GTB Plc vs Fadco Industries Nig ltd (Supra); S&D Construction ltd vs Ayoku (2011) 13 NWLR (pt. 1266) 487; NNPC vs WIFCO Nig. ltd (2011) 10 NWLR (pt. 1255) 209; Aluwa vs SPDCN (2011) 18 NWLR (pt. 1279) 797.

Applicant had wanted ten million naira as damages. I do not think three million naira awarded to the Applicant was ludicrous or excessive, in the circumstances of this case.

On the allegation that the damages was not proved by credible evidence, and that the person who, in fact, caused the damages must be established, Appellants Counsel appeared to have forgotten that general damages need not be, specifically, pleaded or proved, as the same tends to flow from the act/conduct of the defendant complained against. And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of Applicants fundamental right(s). See Section 35 (6) of the 1999 Constitution and the case of Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 CA, where

this Court held:
The law is trite that damages in compensation, legally and naturally follow every act of violation of citizens fundamental right. See Section 35 (6) of the 1999 Constitution, as amended. See also Agu vs Okpoko (2009) LPELR 8286 CA.
In the case of Gusau & Ors vs Umezuruike (2012) ALL FWLR (pt. 655) 291; (2012) LPELR ? 8000 (CA), it was held
?detention, no matter how short, can lie a breach of fundamental right. But that can only be so, if the detention is adjudged wrongful or unlawful in the first place; that is, if there is no legal foundation to the base the arrest and/or detention of the applicant, See Okonkwo vs Ogbogu (1996) 5 NWLR (pt. 499) 420; Isenalumhe vs Joyce Amadin (2001) CHR 458; Nemi vs A.G Lagos State (1996) 6 NWLR (pt. 452).
And in the case of Ejiofor vs Okeke (2000) 7 NWLR (pt. 665), it was held:
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 . . .

We have

stated, several times, that a party who employs the Police or any law enforcement agency, to do unlawful act and/or to violate the fundamental rights of a citizen, should be ready to face the consequences, whether alone or with the misguided agency. See again the recent decision of this Court in the case of Bernard Anogwie s Ebere Odom & Ors: (2016) LPELR ? 40214 (CA), delivered on 24/3/16; Ogbonna vs Obgbonna (2014) 23 WRN 48; (2014) LPELR ? 22308 (CA).

I cannot, therefore, fault the discretion of his trial Court in awarding ?3,000,000.00 damages to the 1st Respondent (Applicant), as Appellant has not shown that that discretion was not properly exercised, in the circumstances.

I, therefore, resolve all the issues against the Appellant and dismiss the appeal, for lacking in merit.

Appellant shall pay the cost of this appeal assessed at fifty thousand Naira (?50,000.00) only, to 1st Respondent.

PETER OLABISI IGE, J.C.A.: I have been aforeded the opportunity to read in advance the judgment just read by my brother MBABA, JCA.
My learned brother adequately considered and resolved all the

issues that arose in this appeal. I have nothing to add on the conclusion reached by him.

FREDERICK OZIAKPONO?OHO, J.C.A.: I have the opportunity of reading the draft of the judgment just delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement with his reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto.

Appearances

L. I. Ibezin, Esq.For Appellant

AND

Chief O. C. Odoemena for 1st RespondentFor Respondent