REV. PAUL ENANUGA & ORS v. HON. NSEABASI (CORNELIUS) SAMPSON
(2012)LCN/5791(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/C/193/2007
RATIO
POLICE: RESPONSIBILITY OF THE POLICE
By virtue of Section 4 of Police Act, Cap 19 Laws of the Federation of Nigeria, 2004, the Police has the duty and responsibility to prevent crime, to detect crime and preserve law and order among others. These duties are carried out within the exclusive discretion of the police. Where a crime is reported it is within the discretionary powers of the police to decide whether to investigate such a crime and the manner in which to conduct such investigation. See Fawehinmi vs. IGP (2002) 7 NWLR (Pt. 767) 606. PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CAUSE
It is the law that in every civil cause or matter, the plaintiff who is the person who will fail if no evidence were produced on either side has the burden of first establishing his assertions. This is the requirement of Section 132 of Evidence Act, 2011. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ARREST: TEST TO DETERMINE REASONABLE SUSPICION TO JUSTIFY AN ARREST BY THE POLICE
In my humble view for there to be reasonable suspicion to justify an arrest by the police the test is objective based upon the facts of each case. See Shaaban Bin Hussein vs Chong Fook Kam (1969) 3 All E.R. 1626 at 1630; Dumbell vs Roberts (1944)1 All NLR 326; Felix Chukwuka vs Commissioner of Police (1964) NRNLR 21 at 24 and Oteri vs Okorodudu & Anor (1970) All NLR 199. PER JOSEPH TINE TUR, J.C.A.
DAMAGES: CIRCUMSTANCES WHERE EXEMPLARY DAMAGES MAY BE AWARDED
In Odiba vs Muemue (1999) 10 NWLR (Pt.622) 174 at 190 Uwaifo, JSC set out the circumstances when exemplary damages may be awarded as follows:
“Exemplary damages may be awarded only in cases:
(i) of oppressive, arbitrary or unconstitutional acts by government servants;
(ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the Plaintiff;
(ii) where expressly authorized by statute. See Eliochin Nig. Ltd. vs Mbadiwe (1956) 1 NWLR (Pt.14) 47 at 67 and Rookes v. Barnard & Ors (supra) at pages 1221, 1226- 1228 and 1232-1233.” PER JOSEPH TINE TUR, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
1. REV. PAUL ENANUGA
2. EVANG. FELICIA ENANUGA
3. REV. ANTHONY DADA
4. REV. LIONEL AKPAN
5. DEACON CHRIS NKANG
6. ELDER NSIMA ASUQUO
7. DEACONESS EMILY EFFIONGAppellant(s)
AND
HON. NSEABASI (CORNELIUS) SAMPSONRespondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): Upon the motion exparte filed on 21st April, 2006 in Suit No. HU/MISC/66/2006, at the Uyo Division of the High Court of Akwa Ibom State, the respondent herein as applicant was granted leave on 2nd May, 2006, to enforce his fundamental human rights.
He subsequently filed a Motion on Notice on 4th May, 2006 under Order 2 Rule 1 (1) of Fundamental Rights Enforcement Procedure Rules for the following reliefs:
“a. An order restraining the Respondents, by themselves, servants, agents or privies howsoever from inviting, re-inviting, hunting for, harassing, intimidating, arresting and detaining, re-arresting and detaining the Applicant on the pretex (sic) of ”interviews’ or “investigations’ or other unlawful acts of incarcerations.
b. A declaration:
(i) That the Arrests and Detentions, inviting, continued hunting for, harassment, and intimidation of the Applicant by the 8th and 9th Respondents at the behest of the 1st to 7th Respondents constitute a gross violation of the due process of law and amounts to infringement of the Applicant’s Fundamental Rights enshrined in Sections 35; 36; 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) That it is unlawful to use the machinery of the Nigeria Police Force for the purpose of harassment and intimidation of the Applicant who is a law abiding citizen. The conduct of the Respondents is arbitrary, illegal, harsh, oppressive, vindictive, unlawful, unconstitutional and therefore void.
(iii) N500,000.00 (Five Hundred Thousand naira) only jointly and or severally on the footing of exemplary damages against the 1st to 7th Respondents for the unwarranted infringement of the Applicant’s Fundamental Rights.”
The motion on notice was filed with a Supporting Affidavit of 5 paragraphs, a verifying Affidavit and the Statement and Grounds for the application. The Appellants who were the 1st to 7th Respondents filed a Counter Affidavit of 18 paragraphs on 12th May, 2006. Three Respondents; Ekerete Umana. The commissioner of police, AKS and A.I.G. zone 6, Calabar who were joined as the 8th, 9th and 10th Respondents did not file any process at the lower court and they are not made parties to this appeal.
After hearing arguments, the learned trial judge in the Ruling dated 24th November 2006herd as follows:
“I therefore hold for the Applicant, and declare that the Respondents have infringed the Applicant’s rights to personal liberty and dignity of his human person-by subjecting him to the series of arrests and detentions and further exposing him to threats of further arrest and detention at the pleasure of 1st to 7th Respondents. It is unlawful to use the machinery of the Nigeria Police Force for the purpose of harassment and intimidation of a law abiding citizen, The Respondents are hereby restrained by themselves, their agents, servants or privies from further acts of infringement of the Fundamental Rights of the Applicant.
I award the sum of two hundred fifty thousand naira (sic) (N250,000.00) to the Applicant to be paid by the Respondents jointly and severally for violent inversion of the Applicant’s fundamental right.”
The present appellants who felt dissatisfied with the decision of the lower court filed their Notice of Appeal on 1st December, 2006 with three grounds of appeal, and in the Appellant’s Brief prepared by Chris O. Ezeibe Esq. of counsel and filed on 8th July, 2009, but deemed as properly filed on 14th March, 2011, the following issues were formulated from the grounds of appeal.
1. Whether the Fundamental Rights of the Respondent was infact breached by the Appellants.
2. Whether the award of the exemplary damages/cost to the Respondent was justified in the circumstances.
The two issues formulated by the Respondent in the Respondent’s Brief of Argument prepared by Idongesit Umoh Esq. of counsel and filed on 14th March, 2011 are:
1. Whether the court below was right in holding that the Respondents (Appellants herein) have infringed the Applicants’ (Respondents herein) right to personal liberty and dignity of his human person by subjecting him to the series of arrests and detentions and further exposing him to threats of further arrest and detention at the pleasure of the 1st – 7th Respondents (Appellants herein).
2. Whether the award of the sum against the Respondents (Appellants herein) for the violent inversion of the Applicant’s (Respondent herein) fundamental rights and the cost of action was proper, in the circumstance?
The issues relate to the question of breach or otherwise of respondent’s fundamental rights by the appellants and the propriety of awarding damages against them.
The two Briefs were adopted and relied upon by the respective learned counsel for the parties at the hearing of this appeal on 31st January, 2012. Since the issues are quite similar, the appeal will be considered upon the two issues formulated by the appellants as already set out above.
The argument of the learned counsel for the appellant on his first issue is that the basis for the respondent’s allegation of breach of his fundamental rights is the report the appellants made to the police about the attempted robbery/assassination that occurred in the house of the 1st and 2nd appellants on 23rd February, 2006 and 25th March, 2006. He submitted that the appellants had a duty to report the commission of crime to the police, and whenever such report is made, it is the duty of the police to investigate within the entire exercise of their discretion, for which he cited Fajemirokun vs. C. B. Nig. Ltd. (2009)) 8 NWLR (Pt. 1135) 588; Isheno vs. Julius Berger Nig. Plc (2008) 2 KLR (pt. 250) 1059.
He submitted also that since the report made by the appellants was without malice and devoid of any interference with police investigation on the report, it cannot be the basis of an action for the enforcement of fundamental human rights, citing Afribank Nig. Plc vs. Onyima (2004) 2 NWLR (Pt. 858) 654; Owomero vs. Flour Mills Nig. Ltd. (1995) 9 NWLR (pt. 421) 622.
He contended that Section 35 (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 is not absolute and the respondent was not detained beyond the period allowed by the law; Dokubo-Asari vs. FRN (2007) 12 NWLR (pt. 1048) 320.
The learned counsel contended on the second issue that there is no evidence to suggest any ground for the award of N250,000.00 against the appellants for the “violent inversion” of the respondent’s fundamental rights since the appellants merely reported a crime to the police and left police to investigate the report. He then submitted that where a case is made out for the award of damages in human right cases, it is general damages that is usually awarded except where special damages had been specifically claimed and proved for which he relied on Ezeka vs. Nwankwo (2000) HRLRA 165.
He further submitted that for the court to award exemplary damages such must have been specifically pleaded and proved, &s exemplary damages is awarded in instances where the conduct of the defendant has disclosed malice, fraud, cruelty, insolence or disregard of the law. He relied on Odogu vs. A. G. Fed. (2000) 2 HRLRA 82 (1996) 6 NWLR (Pt. 456) 508; Ukachukwu vs. Uzodinma (2007) 9 NWLR (pt. 1038) 167.
The learned counsel for the respondent submitted on the 1st issue that the action at the lower court was fought upon affidavit evidence, and a party who intends to dispute deposition in an affidavit must do so by filing a Counter affidavit and where he neglects to do so, he is deemed to have admitted the facts in the affidavit and further prove of such facts will not be required except where such facts are themselves not credible; Ogun State vs. Coker (1993) 9 NWLR (Pt. 316) 214. He submitted that where there is evidence of arrest and detention instigated by the respondent, it is for the respondent to justify the lawfulness of the arrest and detention; Ejeor vs. Okeke (2000) 7 NWLR (pt. 665) 363; Okonkwo vs. Ogbogu (1996) 5 NWLR (pt. 449) 420; Nwadinobu vs. Botu (2000) 9 NWLR (pt. 672) 220; Commissioner for Police, Ondo State vs. Ahemba (1999) 7 SC (Pt. l) 92; Maclaren vs. Jennings (2003) 3 NWLR (pt. 808) 470; SPDC (Nig) Ltd. vs. Olarewaju (2002) 16 NWLR (pt. 792) 38; Afribank (Nig) Plc vs. Onyima (2004) 2 NWLR (Pt. 858) 654.
Counsel contended that the appellants failed to co-operate with the police in the investigation of their complaint by not coming for the arraignment of the respondent. The appellants wrongly used the police and abused their right to report a crime. The report of the appellants was false and malicious and they could not be said to have reported a crime and left the report for the police.
The learned counsel contended that making a false or malicious report to police against another person is a ground for incurring liability. He submitted that where a person is arrested and detained at police station without justification, the period of the detention will not be material, Iseenalumhe vs. Amadin (2001) CHR 458.
On the second issue, the learned counsel submitted that the court has a duty to safeguard the rights and liberty of citizens and prevent any abuse or misuse of power. He submitted that where a right has been infringed it is the duff of court to order proper remedy – Ubi jus ibi remedium; NAWA vs. A.G. Cross River State (2008) All FWLR (Pt. 401) 807; Federal Minister of Internal Affairs & Ors. vs. Shugaba Darman (1982) 3 NCLR 915.
He submitted that the respondent was entitled to damages even without giving evidence thereof. He cited Nwangwu vs. Duru (2002) 2 NWLR (Pt. 751) 265; Obisi vs. Nigerian Navy (1999) 1 FHCLR 609. He submitted that a court may grant a prayer in an application on a condition different from that requested by the applicant; Estiostone H. Nig. Ltd. vs. Osun State Govt. (2006) All FWLR (Pt. 340) 1131.
It was further submitted by learned counsel that the use of the words “violent inversion” by the learned trial judge may be regarded as an error, but this is not substantial enough to overturn the judgment or warrant interference by the appellate court; Maduki vs. State (1996) 2 NWLR (Pt. 429) 171. An appellate court will interfere with an award of damages where it has been based on an erroneous estimation of the loss suffered or where the discretion of the lower court was exercised arbitrarily; Uman vs. Owoeye (2003) 9 NWLR (pt. 852) 221; Onagoruwa vs. Inspector- General of Police (1993) 5 NWLR (pt. 193) 593.The appellants filed a Reply Brief on 6th May, 2011, but except for the submission that the respondent’s failure to challenge the facts in their Counter Affidavit amounted to admission of the facts for which the case of Dokubo-Asari vs. FRN (2007) NWLR (Pt. 1048) was cited, the Reply Brief is essentially a summary of the Appellant’s Brief.
The grounds upon which the respondent based his action at the lower court on pages 22-27 of the record of appeal disclose that the appellants and the respondent belonged to one religious organization known as God in Action Church Inc. at Uyo, which was founded by 2nd appellant, the wife of the 1st appellant. At a stage there was some disagreement within the church with regards to the handling of funds and the general administration.
Paragraphs 14, 15, 16, 17, 18, 19, and 20 of the Grounds filed by the respondent contain the following facts:
(14) On 28/3/06, a team of policemen ted by one Orok from A- Division of the Nigeria police Force, Uyo, arrested and detained the Applicant for about 11 hours at the A Division Police station at the compliant (sic) of the 1st and 2nd Respondents. They alleged that assassins broke into residence to kill them and that it a fulfilment of the dreams the 2nd Respondent had about the Applicant as stated in paragraph 12 above. It took the intervention of friends of the Applicant and his solicitor, Idongesit Umoh Esq. for the Applicant to be released on bail after fulfilment of stringent bail conditions with the Police. The Applicant was asked to report back to the Police the following day.
(15) The Applicant reported back to the Police and met with 1st and 2nd Respondents at the Police Station. After all Police procedures both parties had interview with the Divisional Police Officer (DPO) A-Division.
The D.P.O resolved that he is not Joseph and there is no Joseph in the Nigeria Police Force recruited to interpret dreams. That since the 1st and 2nd Respondents do not have any other thing to substantiate their allegation against the Applicant apart from dreams, they (1st and 2nd Respondents) should attend court where the Applicant would be arraigned on the allegation; may be the court would have a way of dealing with allegation founded on dreams. The Police at A-Division fixed a date for both parties to come to them to proceed to court, the Applicant reported but the 1st and 2nd Respondents did not. The Police advised the Applicant to give them time to contact the 1st and 2nd Respondents (complainants).
(16) On 13/4/06, a team of Policemen led by the 8th Respondent invaded the residence of the Applicant harassed, intimidated, arrested and detained the Applicant like a common criminal on a similar complaint to the one stated above. The 8th Respondent showed the Applicant a petition signed by the 1st – 7th Respondents- alleging that the Applicant is threatening the life of and is planning to kill the 1st Respondent. That God revealed the planned attack through dreams to the 2nd Respondent and they were indeed attacked by assassins or robbers. The Applicant suffered another round of detention. He subsequently secured his bail after about 12 hours of detention.
(17) The 8th Respondent fixed the 18/4/06 for the complainants (1st- 7th) to come to the station. On 18/4/06, the Applicant was at the Police Station the 1st – 7th Respondents did not attend.
(18) On 20/4/08, a friend, Daniel informed the Applicant and the Applicant believed him, that the 1st-7th Respondents have made the same complaint against the Applicant to the office of the 10th Respondent. That Policemen from the 10th Respondent’s Command Headquarters; Calabar would arrest the Applicant anytime “.
The appellants filed a Counter affidavit in reaction to the facts stated above by the respondent. The Counter affidavit was filed on 12th May, 2006, and the deponent, Rev. Lionel Akpan who is the 4th appellant deposed in paragraphs 13, 14, 15 and 16 as follows:
“13. That I am informed by the 1st Respondent whom I am (sic) verily believe that on 23/2/2006 at about 2.00 a.m assassins broke into the residence of the 1st and 2nd Respondents and made fruitless efforts to break into the bedroom of the said Respondents and left after some time, and that the incident was reported to the police
14. That I am further informed by the 1st Respondent whom I verily believe that on 25/3/2006 at about 2.00a.m they were again attacked after the attackers had successfully sawed open their iron protectors but were unsuccessful to gain access again to the bedroom of the 1st and 2nd Respondent (sic) who on both attacks seemed the prime targets, since nothing was stolen from any other apartments of the house to which the attackers had unhindered access and that the matter was reported to the police.
15. That since the matter was reported to the Police, the Police went into their investigation, and it would appear that the Applicant was invited to the police for interrogation as part of their investigation.
16. That I am informed by our Solicitor Chris O. Ezeibe whom I verily believe that the police have both the duty and discretion to conduct their investigation in the manner best known to them.”
The above facts in the Counter affidavit show clearly that it was real that some attackers invaded the residence of the 1st and 2nd appellants in the night of 23/3/2006 and 25/3/2006, and that was the incident they reported to the police. It is noted that the depositions in the Counter affidavit were not contradicted, or challenged by way of any affidavit from the respondent. The facts therein must be deemed as admitted, and the court is enjoined not only to accept an unchallenged affidavit evidence, but also to act thereupon. See Badejo vs. Fed. Ministry of Education (1996) 8 NWLR (Pt. 464) 15; A.G. Plateau State vs. A.G. Nasarawa State (2005) 9 NWLR (pt. 930) 421; The Honda place Ltd. vs. Globe Motor Holdings Nig. Ltd. (2005) All FWLR (pt. 283) 1.
The law imposes a duty on the appellants to report the commission of a crime witnessed or experienced by them and a person or persons who report such commission of crime to police and leave the police to investigate such report within their exclusive discretion cannot thereby incur any liability. See Fajemirokun vs. C. B. (Nig) Ltd. (2009) 5 NWLR (Pt. 1135) 588, (2009) All FWLR (Pt. 457) 1; (cited by counsel) Gbajor vs. Ogunburegui (1961) All NLR (1) 882; Bassey vs. Alfa (2010) All FWLR (Pr. 531) 1477.
By virtue of Section 4 of Police Act, Cap 19 Laws of the Federation of Nigeria, 2004, the Police has the duty and responsibility to prevent crime, to detect crime and preserve law and order among others. These duties are carried out within the exclusive discretion of the police. Where a crime is reported it is within the discretionary powers of the police to decide whether to investigate such a crime and the manner in which to conduct such investigation. See Fawehinmi vs. IGP (2002) 7 NWLR (Pt. 767) 606.
Apart from their complaint to the police on the invasion of their premises and their coming to the police station on the invitation by police, there is no evidence of any step taken by the appellants that may warrant an inference that they set the law in motion against the respondent. All the acts of inviting intimidating, arresting and possibly detaining alleged by the respondent were done entirely by the police.
I do not find any evidence on record to show that it was the appellants that breached or infringed upon the rights of the respondent as alleged by him.
Issue 1 is resolved in favour of the appellants.
Issue 2 is the justification for the award of N250,000.00 exemplary damages by the trial court.
It is the law that in every civil cause or matter, the plaintiff who is the person who will fail if no evidence were produced on either side has the burden of first establishing his assertions. This is the requirement of Section 132 of Evidence Act, 2011.The plaintiff alleged the breach of his fundamental right by unlawful invitation, arrest, detention, etc, but failed to produce any record of such arrest, or detention by the police even when he alleged that his solicitor had to apply for his bail at the police station. The respondent undoubtedly ought to put forward evidence that is solid, concrete, and far reaching in support of his alleged arrest and detention before the appellants could be called upon to justify such arrest and/or detention. In the absence of such record, or reason for not producing it, it can at best be that the respondent was invited by the Police.
The respondent’s claim inter alia is for N500,000.00 “on the footing of exemplary damages against the 1st-7th respondents” (who are now appellants) the learned trial judge however gratuitously extended the claim by awarding N250,000.00 “to the Applicant to be paid by the Respondents jointly and severally for the violent inversion of the Applicant’s human rights”. The law does not permit a court to whimsically extend or abridge the claim of the parties or to grant that which was not asked for.
That is just by the way since the 8th, 9th and 10th respondents at the trial court are not involved in this appeal.
Now exemplary damages which is otherwise known as punitive damages is awarded so as to punish and thereby deter the reckless conduct of a defendant. Exemplary damages is awarded in the following circumstances:
1. Where it is expressly authorized by statute,
2. In cases of oppressive, arbitrary, or unconstitutional action by government servants.
3. Where the defendants’ conduct has been calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff. See Chief F. R. A. Williams vs. Dairy Times of Nigeria (1990) I NWLR (Pt. 124) 1; Elochin (Nig) Ltd. vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
To justify the award of exemplary damages a claimant must show not simply that the defendant committed the wrongful act complained of, but that the defendants’ conduct has been high handed, outrageous, oppressive, malicious or generally against the law.
I do not see from the circumstances of this case, how the appellants can be held liable in exemplary damages for the act of reporting a crime to the police. The award of N250,000.00 exemplary damages against the appellants by the lower court has been based on wrong principle of law and it is accordingly set aside.
I resolve issue 2 in favour of the appellants.
The totality of the foregoing is that this appeal succeeds and it is allowed.
The judgment of the lower court is set aside, and in its place I enter a dismissal of the respondent’s claim.
I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: The views expressed by my learned brother Isaiah Olufemi Akeju, JCA, on the two (2) issues submitted for decision in the appeal and contained in the lead judgment just delivered are the same with mine.
For the reasons set out therein which I adopt, the appeal is patently meritorious and allowed by me in the terms of the lead judgment.
JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment delivered by my Lord, Isaiah Olufemi Akeju, JCA and I concur. I shall add the following comments of mine.
An applicant who founds his cause of action under the provisions of the Fundamental Rights Enforcement procedure Rules has to show the court which of his fundamental right is being contravened or is likely to be contravened in the state for which he seeks redress under section 46(1) and (2) of the constitution of the Federal Republic of Nigeria, 1999 as altered. The fundamental rights that the constitution seeks to protect and which a remedy or relief is to be granted are set out in section 33 to 45 of the 1999 Federal constitution as altered.
From the nature of the complaints set out in the supporting affidavit of the Respondent in the lower court, summarized by my Lord in the lead judgment, the nearest provision of the constitution that may be said to have been breached by the appellants is section 35(1)(c) of the constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:
“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a precedure permitted by law:-
xxx
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to present his committing u criminal offence;…”
The police are conferred with the statutory powers of preventing the commission of crimes or investigating committed crimes when reported to them. See Section 4 of the Police Act Cap 19 Laws of the Federation of Nigeria, 2004. When a crime is about to be committed it is within the discretion of the police to set in motion the machinery to prevent its commission or where it has occurred, to be investigated. Investigation is to be carried out by inviting the suspect to the police station for interview or interrogation to find out the reasonableness or otherwise of the suspicion. Where the invitation is not honored the police are empowered to arrest and or detain the suspect depending on the circumstances of each case.
The police take whatever action they deem fit, bearing in mind the result of their interrogation or investigation. The Respondent cannot be heard to argue, as it was argued in the lower Court and accepted by the learned trial Judge, that there was absence of reasonable suspicion to warrant the appellants reporting him to the police for interrogation or investigation for which he is entitled to any damages. The learned authors of Black’s Law Dictionary, 8th edition page 1487 define the term “reasonable suspicion” as “A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. A police officer must have a reasonable suspicion to stop a person in a public place.”
In my humble view for there to be reasonable suspicion to justify an arrest by the police the test is objective based upon the facts of each case. See Shaaban Bin Hussein vs Chong Fook Kam (1969) 3 All E.R. 1626 at 1630; Dumbell vs Roberts (1944)1 All NLR 326; Felix Chukwuka vs Commissioner of Police (1964) NRNLR 21 at 24 and Oteri vs Okorodudu & Anor (1970) All NLR 199.
To hold otherwise is to dissuade police from acting on reasonable suspicion that a crime is likely to be committed or has been committed, from inviting the suspect for interrogation or arresting him for fear of breaching his fundamental right as enshrined under the constitution. That can never be the intention of the law maker. Without proof of a wrong according to the law or the constitution, there can be no remedy sounding in exemplary damages. In Odiba vs Muemue (1999) 10 NWLR (Pt.622) 174 at 190 Uwaifo, JSC set out the circumstances when exemplary damages may be awarded as follows:
“Exemplary damages may be awarded only in cases:
(i) of oppressive, arbitrary or unconstitutional acts by government servants;
(ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the Plaintiff;
(ii) where expressly authorized by statute. See Eliochin Nig. Ltd. vs Mbadiwe (1956) 1 NWLR (Pt.14) 47 at 67 and Rookes v. Barnard & Ors (supra) at pages 1221, 1226- 1228 and 1232-1233.”
The Respondent did not bring his case within the above circumstances to warrant an award of exemplary damages. For these and the fuller reasons given by my Lord, I also allow this appeal and abide by the orders made.
Appearances
Chris O, Ezeibe Esq.For Appellant
AND
Idongsit Umoh Esq.For Respondent
